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REPORTS  OF  CASES 


AEGUED  AND  DETEKMINED 


^nglisl  €mxxU  ni  Cnmntflu  |Calu. 


TABLES  OF  THE  CASES  AND  FBINCIPAL  MATTERS. 


wrni  AimrrroNAL  cases  dectded  durtkg  teb  same  pertod,  selected  from  the  oon- 

TEHPORANBOUS  RKPOKTS  ANU  FROM  TUB  I>ECISIONa  IS  THK  II0U3B  OF  LOADS, 
WITE  E£FER£3#C£i  TO  DECIBIONS  IN  TfIB  AMEKICAK  O0UltT& 


VOL.    CIX. 


COSTTAT^ma 

THR  CASES  ARdUED  AND  DETEHMIXED  IN  THE   COURT  OF  COMMON  PLEAS, 

AN0  IN  THE  EXCHEQUER  CIlAMDEH,  IN  MICHAELMAS  TEBM  AND 

VACATION,  IS03,  AND  HILARY  TERM,  1864, 


JAMES    PASSONS,    Esq., 

EBITOR* 


*  ■*    mm*     #, 

1*  *     ^       *   ^    , 

■»  »  ff    *    *-  -        • 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON  &  CO.,  LAW  BOOKSELLERS, 
aa.  G3G  CBitTiioT  stmciT. 

1873. 


359715 


•  »     .•  •••  •      •       •    •  **•  *    *     « 


COMMON  BENCH 
REPORTS. 


CASES  ARGUED  AND  DETERMINED 
m 

THE  COURT  OF  COMMON  PLEAS, 

AiiD  nr  THx 

EXCHEaUER   CHAMBER, 


w 


MICHAELMAS  TERM  AND  VACATION,  1863,  AND  HILARY 

TERM,  1864. 


BY 

JOHN  SCOTT,  ESQ., 

or  TBI  INNER  TEMPLE,   BARRI8TEB-AT-LAV. 

VOL.  XV. 

WITH  REFERENCES  TO  DECTSI0N8  IN  THE  AMEHICAN  COURTS. 


JAMES    PARSONS,    Esq. 

BDITOR. 


PHILADELPHIA: 
T.  k  J.  W.  JOHNSON  &  CO.,  LAW  BOOKSELLERS, 

NO.  53$  CHBSTNUT  STREET. 
1873. 


Bnterad,  aoeording  to  Aet  of  CongreMi  in  the  jwt  1869,  by 

T.  A  J.  W.  JOHNSON  A  CO., 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  in  and  for  the  BMtera 
District  of  PennsyWania. 

1IBAR8  k  DUSBllBBar,  8TBBB0TTPBR8. 


JUDGES 


THE  COURT  OF  COMMON  PLEAS. 

DUBING  THB  PERIOD  COMPBISBD  IH  THIS  YOLUMB. 


The  Right  Hon.  Sir  William  Eblb,  Knt.,  Lord  C.  J. 
The  Hon.  Sir  Edwabd  YAuaHAN  Williams,  Ent. 
The  Hon.  Sir  Jambs  Shaw  Willbs,  Ent. 
The  Hon.  Sir  John  Babnabd  Bylbs,  Ent. 
The  Hon.  Sir  Hbnbt  Singbb  EBATDre,  Ent. 


ATTOBNBTS-aBNBBAL. 

Sir  William  Athbrton,  Ent. 
Sir  BouNDELL  Palmbr,  Ent. 


SOLIGITORS-GBNERAL. 

Sir  RouNDBLL  Palmbr,  Ent. 

Sir  RoBBRT  Porrbtt  Collibr,  Ent. 


TABLE 


Of 


THE  NAMES  OP  THE  CASES 

RSPORTBD  15  THIS  VOLUME. 
J^  The  names  of  the  Additional  Cases  are  printed  in  Baiie. 


PAoa 

iidanis,  Whiteley  v.  .  .  392 
AddamSy  reap.,  Cannter,  app.  512 
Aldington  and  Cheaahire,  In  re  875 
Aldridge  v.  Great  Western  Rail- 
way Company  562 
Alkrd  9.  Bourne       ...  468 

B. 

Bainton,  Blackman  v,  .    432 

Baird  v.  Williamson  .    876 

Barber  v.  Nottingham  and  Grant- 
ham Bailway  and  Canal  Com- 
pany    ... 

Barker  v.  Highley    . 

Barclay,  Barry  v. 

Barry  v,  Barclay 

Bartholomew  v.  Markwick 

Benham,  Bennett  0. 

Bennett  v.  Benham  . 

,  app.,  Blain,  reap. 


Berkeley,  Collingwood  v. 
Berkley  v.  Shafto 
Berridge,  reap.,  Felkin,  mp]^, 
Beran  9.  W&itmore  . 
BiDin^,  Rosewame  v. 


.  27 

.  849 

.  849 

.  711 

.  616 

.  616 

.  518 

.  145 

.  79 

.  257 
483,  442 

.  316 


Bishop  of  Exeter  ( jBmiy  Lord) 

and  BorweU  y.  Manhali       .  857 

Blaokman  v.  Bainton  433 

Blaekmore  v.  Higgs                   .  790 

Blain,  reap.,  Bennett,  app.  518 

Booth  V,  Gair   ....  291 

,  reap.,  Henrette,  app.  500 

BortoeUy  Henry  Lord  Bishop  of 

Exeter  and,  y.  MarshaU        .  857 

Bonard,  Vanqnelin  ir.  341 

Bonillon  v.  Lnpton    .  113 

Bourne,  AQard  ir.      .        .        .  468 

Bradney,  reap.,  Growther,  app.  .  586 

Brewer,  Heath  v.      .        .        .  803 
Bridgnorth  (Mayor,  &c.),  EUia 

V 52 

Brook,  reap.,  Sayage,  app.          .  264 

BuU  V.Clarke           ...  851 


Caunter,  app.,  Addama,  reap.  512 

Cawthron  v.  Trickett                 .  754 

Cheaahire,  Aldington  and,  In  re  375 

Chriatopheraon  «•  Lotinga  809 

Church  v.  Wright     .                .  760 

Clarke,  Bull  V.          ...  85^ 
(vii) 


VIU 


TABLE  OF  CASES  REPORTED. 


PAOI 

Cloud,  In  re     .  833 

Cole  i;.  Meek  ....  795 
CoUingwood  v.  Berkeley  .  .  145 
Commercial    Union    Assurance 

Co.,  Pearson  v.      .        .        .304 
Copley  V.  Hemingway  .    447 

Couch,  Nelson  v.       .  .99 

Crow,  Makeham  v.    .        .  847 

Crowther,  app.,  Bradney,  resp.  .    536 
Croydon  Commercial  Oas  Com- 
pany, Parry  t?.       .        .        .    568 
Cubley,  Pigot ».        .  .701 


Dakinv.  Oxley  .646 

Dean  v.  Mellard        ...      19 
Dickson,   Submarine  Telegraph 

Company  i; 759 

Dobson,  Heap  v.        .        .        .    460 
Dodsv.  Eyans  .  .621 

Dunkley,  resp.,  Robinson,  app.  .    478 

E. 

Eldridge  v.  Stacey    .  .458 

Ellis  V.  Bridgnorth  (Mayor,  &c.)      52 
Evans,  Dpdsv.  .  .621 

Exeter f  Henry  Lord  BUhop  ofj 
and  Borwell  y.  MarihaU  857 

F. 

Felkin,  app.,  Berridge,  resp.  .    257 

Floud,  resp..  Force,  app.    .  543 

Force,  app.,  Floud,  resp.    .  543 

V.  Warren        .        .  .806 

Fryer  v.  Kinnersley  .    422 

G. 

Oair,  Booth  v.  ...  291 

Oarbutt,  app.,  Treyor,  resp.       .  550 

Gkrdiner  v,  Jelliooe  170 

Goodman  v.  Holroyd  839 


Gore  ».  Grey  (Bart.) 

Grant,  Shand  v. 

Great    Western    Railway 

Aldridge  v.   . 
Grey  (Bart.),  Gore  ». 

H. 

Hall,  resp..  Smith,  App. 
Heap  V.  Dobson 
Heath  v.  Brewer 
Hemingway,  Copley  v. 
Henrette,  app..  Booth,  resp. 
Higgs,  Blackmore  t;. 
Highley,  Barker  v.    . 
Hill,  Lara  v.     .        . 
Holroyd,  Goodman  v. 
Howells,  app.,  Wynne,  resp, 

J. 

Jarman  v,  Lucas 
Jellicoe,  Gardiner  v, 
Johnson  v.  Stear 
Jolly  V.  Rees    . 
Jones,  Robbins  v. 
,  Smart  v. 


Co., 


K. 

Keith,  Kidner  v, 
Kidner  v.  Keith 
Kinnersley,  Fryer  v. 
Knight,  Morgan  v.    . 


Lambert,  Sichel  v,    . 
Lara  v.  Hill 
Lawton,  Miller  v, 
Leigh  V.  Pendlebury 
Lloyd,  Montefiore  v, 
London  and  South  Western  Rail- 
way Go  V  Webb 


567 
324 

582 
567 


485 
460 

803 

447 

500 

790 

27 

45 

839 

3,17 


474 
170 
330 
628 
221 
717 


35 

35 

422 

669 


781 

45 

834 

815 

203 

• 

450 


TABLE  OF  CASES  REPORTED. 


iz 


Lotioga,  CbristophersoD  v, 
Lowndes,  Ringland  v, 
Lucas,  Jarman  v, 
LnptOD,  Bouillon  v.  , 


PAOI 

809 
173 

474 
113 


M. 

Mace  V.  Philcox        ...  600 

Makeham  v.  Crow                       .  847 

Markwick,  Bartholomew  v.  711 
Manhallf  Henry  Lord  Bishop  of 

Exeier  and  BonoeU  Y,   .         .  857 

Meek,  Cole  v 795 

Mellard,  Dean  v.       .  .19 

Memoranda. 
Judgei, 

Death  of  Creflswell,  J.  1 

Wightman,  J.      .  581 

Promotion  of  Wilde,  B.  1 

Appointment  of  Pigott,  B.  2 

Shee,  J.   .  581 
Attorney  and  Solicitor' Gene^ 
ral. 
Resignation  of  Atherton,  A. 

G 2 

Promotion    of   Palmer,   S. 

G 2 

Appointment  of  Collier,  S. 

G 2 

Queen*  iCoumel, 

Cooke,  Gray,  Powell,  Loch  2 

Ballantine,  Seijt.,  patent  of 

precedence                      .  581 

Miller  9.  Lawton  .834 

Montefiore  r.  Lloyd                    ..  203 

'  Morgan  v.  Knight     .        .        .669 

Morrison  v.  Wookey  457 

N. 

Neboo  V.  CoQcb        ....      99 
North  Eastern  Railway  Co*,,  Ok- 
ladaand,  larft     ..       ..       .680 


North  Eastern  Railway  Co.,  Ox- 
lade  V.  .        .  .695 

Nottingham  and  Grantham  Rail- 
way and  Canal  Co.,  Barber  v.     726 


Odden,  Wilcox  v.      .  .        .837 

Oxlade  and  The  North  Eastern 

Railway  Company,  In  re             680 

Oxlade  V.   The  North  Eastern 

Railway  Company  •             695 

Oxley,  Dakin  9.        .  .         .     646> 

P. 


Parry  v.   Croydon    Commercial 

Gas  Company 

66a 

Pearson  v.   Commercial    Union 

* 

Assurance  Co. 

804 

Pendlebury,  Leigh  v. 

815 

Philoox,  Mace  v.        .        •        . 

600 

Phillips,  White  v.     .        .        . 

242 

Pigot  17.  Cuhley 

701 

Promotions,  see  Memoranda. 

R 

Rees,  Jolly  v 

628 

Richardson,  Smurthwaite  v. 

463 

Ringland  v.  Lowndes 

173 

Bobbins  v.  Jones 

221 

Robinson,  app.,  Dunkley,  leep.  . 

478 

Rosewarne  v.  Billing 

316 

S. 
Savage,  app.,  Brook,  resp. 

264 

Shand  V.Grant 

824 

Shafto,  Berkley  V.     . 

79 

Sicbel  V.  Lambert 

781 

Smart  v,  Jones 

WT 

Smith,  »pp.,  Hall,  resp.     . 

486. 

Smuidiwaite  v.  Ricbardson 

46a 

TABLE  OF  CASES  REPORTED. 


TAW 

W. 

Stacej,  Sldridg«  V.    . 

458 

tm 

Stear,  JohoBon  v.      .        .        . 

830 

Warren,  Force  v.      . 

.    806 

Sabmuine  Telegraph  OomimAy 

Webb,  London  and  Sovtit  West- 

V.  Dickson     .... 

759 

em  Railway  Co.  v. 
White  \.  Phillips      . 

.    460 
.    245 

T. 

Whiteley  v.  Adama  . 

.    392 

Trivor,  reap.,  Garbatt)  app» 
Tricket^  Cawthron  «. 

550 
764 

Whitmore,  BeTan  v. 
Wihsox  V.  Odden 
Williamson,  Bwrd  v. 

438,442 

.        .    887 

.    876 

V. 

Wookey,  Morriaoa  v. 

.    457 

Wright,  Ch«Mk  «.    . 

.    750 

VanqvellA  r.  Bonard 

341 

Wynne,  reap.,  Howells, 

H>p-      .  8, 17 

TA^LE  OF  GASES  CITED. 


Ackroyd  v.  Smith,  10  0.  B.  164 

Aoton  o.  Blandell,  12!  M.  A  W.  324  . 

Adams  v,  Fisher,  3  MVlne  ft  Cr.  526 

Alder  V.  Paok,  5  Dowl.  P.  0.  16       .... 

Allen  9.  Cameron,  1  C.  ft  M.  832     . 

V.  Sharp,  2  Exch.  352     ....        » 

Anderson  v.  Chapman,  5  M.  ft  W.  463    . 
Andrews  v.  Elliott,  5  Ellis  ft  B.  502,  6  Ellis  ft  B.  338 
Annen  v.  Woodman,  3  Taunt  30      •        •        ,        « 
Atkyns  v.  Pearce.  2  0.  B.  N.  S.  763         ... 
Attorney-General  v.  Bonwens,  4  M.  ft  W.  171,  191  . 

- — ' —  9.  London  (CorporacioJi},  3  M'N.  ft  0. 

Aostralasia  (Bank  of)  t>.  Nias,  16  Q.  B.  717    . 
Avery  v.  Bowden,  5  Ellis  ft  B.  714  . 

(in  error),  6  Sllis  ft  B.  953  . 

Ayleshury  Case,  12  Jonrn.  487        .... 


347 


ftD«Gto73I 


Backhouse  v.  Bonomi,  9  Home  of  Lords  Oitie»  503 

Bailej  9.  Stephens,  12  C.  B.  N.  S.  91 

Bailhe  v.  Mondigliani,  1  Park  Ins.  c.  2,  p.  116 

Balnbridee  v.  PKskerine,  2  Sir  W.  Bl.  1^     . 

Baird  v.  WHliamson,  15  C.  B.  N.  S.  377 

Bakewell,  In  re,  Ex  parte  Batler,  2  M. 

Bamford  v.  lies,  3  Exoh.  380    . 

Barber  o.  Lamb,  8  C.  B.  N.  S.  96     . 

Barker  v.  Stead,  3  C.  B.  946     . 

Barnes  v.  Ward,  9  C.  B.  392    . 

Bamett  v.  Hooper,  1  Fost  ft  Fin.  412,  467 

Barrs  v.  Jaekson,  1  Phillips  582 

,  1  Y.  ft  a,  C.  C.  588 


385p  386,  987,  398,  741 
854 


•       • 


791 


.  en 

o4tS,  owl 
362,368 

716,*. 

716; ». 
491,  498 


198, 


62, « 

.    658 

.    636 

738 

674, 679 

.616 

109,  n. 

.    161 

227,  228,  233,  240 

.       869,n. 

.        109,  n. 

.       .    109 

o43.  07W,  o44 

.       .    779 

•    7711 

8  Scott  N.  R.  1019, 


Bartlett  v.  Lewis,  12  C.  B.  N.  S.  249 
Batavier,  19  Jurist  19 
Baleman  v,  Bluok,  18  Q.  B.  870 

Baxter,  app.,  Brown  (or  Newman),  resp.,  7  M.  ft  6(.  ^irv,  »  v^w».  a^.  a.,  ^vxir, 
1  Lntw;  W.  Cas.  287  .        ...        .       525,  327,  528,  529,  530,  533,  538 

Bayley  v.  Griffiths,  1  Hurlst  ft  Colt.  429 342,  843 

Beamish,  app..  Stoke,  resp.,  11  C.  B.  39,  2  Lutlr.  Beg.  Cas.  189     .  .480 

Beaafort(Dakeof)«.  Morns,  6Har8  3^ 389 

Beekov.  Smith,2M.  ftW.  191, 195 818 

BedfordCase,2Doag.E.C.  122,123 495,499 

Bell,  Ex  parte,  In  re  Xaforest,  32  Law  J.,  Bankrnptisy  50      .  .697 

— —  IK  Carey,  8  C.  B.  887 847 

-*---t.aai«ner,4M.ftG.  11,  4SoottA.lt.  621 328 

BellMfs  «.  Ebsworth,  3  Campb.  53 211,212,213,216,219 

Bengja,  Swabey'sAdm.R.468 104,112 

Benjamin  v.  Beleher,  11  Ad.  ft  E.  350,  3  P.  ft  B.  317 679 

Bennett  v.  Deaoon,  2  C.  B.  628 428 

Bentley  v.  Griffin,  5  Taunt.  356 631 

Biaya  o.  Chesapeake  Insoraooa  Oompanyf  7  Oraneh  415  •  .  ^    .    298 


Zll 


TABLE  OF  CASES  CitED. 


.471 


N.987 


J.,  Q.  B 


Biccard  v.  Shepherd,  14  Moore's  P.  C, 

Biffin  0.  Bignell,  7  Harlst.  &  N.  877 

Bilbie  v,  Lumlej,  2  East  469    . 

Bird  V.  Great  Northern  Railway  Company,  28  Law  J.,  Ezoh, 

V.  Higginson,  2  Ad.  A  E.  696,  4  N.  &  M.  505 

Bir6  V,  Moreau,  4  Bingh.  57,  12  J.  B.  Moore  226 
Bishop  0.  Bedford  Charity  (Trustees),  I  Ellis  t  Ellis  697 

V,  PenUand,  7  B.  A  C.  219,  1  M.  A  R.  49     . 

Bisseirs  Trust,  In  re,  25  Law  J.,  Chan.  323    . 
Blackham  v.  Pu^h,  2  C.  B.  569 

Blake  v.  Great  Western  Railway  Company,  7  Harlst  k 
Blasco  o.  Fletcher,  14  C.  B.  N.  S.  147      ..        . 
Bligh  V,  Brent,  2  Y.  &  C.  26$,  3  M  A  W.  422  . 

Blissett  r.  Hart,  WiUes,  503 

Blundell  v,  Cotterall,  5  B.  A  Aid.  268      ..        . 
Bolch.r.  Smith,  7  Hurlst.  &  N.  736  . 
Bold  Buccleugh,  7  Moore's  P.  C.  267 

Bond  V.  Nutt,  Cowp.  601 

V.  Rosling,  1  Best  A  Smith  371        ..        • 

Bonomi  v.  Backhouse,  E.  B.  &  £.  642      . 

Booth  o.  Clive,  10  C.  B.  827 

Bourne  v.  Freeth,  9  B.  &  C.  632,  4  M.  ft  R.  512      . 
Bowker  o.  Burdekin,  11  M.  A  W.  128      . 

Bowles  ».  Orr,  1  Y.  &  C.  464 

Bradley  v,  Southampton  Local  Board  of  Health,  24  Law 

Brady  r.  Todd,  9  C.  B.  N.  S.  592     .        . 

Bridgland  v.  Shapter,  5  M.  A  W.  375 

Brierly  v.  Kendall,  17  Q.  B.  937       . 

Bright  0.  Hutton,  3  House  of  Lords  Cases  341 

Brittain  v,  Kinnaird,  1  Brod.  &  B.  432,  4  J.  B.  Moore  50 

Broadbent  v.  Imperial  Gas  Company,  2  Jurist,  N.  S.  1132 

Brock  f>,  Copeland,  1  Esp.  N.  P.  C.  203    . 

Brodie  v.  Howard.  17  C.  B.  109 

Bromage  v.  Prosset,  4  B.  ft  C.  247,  254,  6  D.  ft  R.  296    . 

V.  Vaughan,  9  Q.  B.  608 

Brooke  r.  White,  1  N.  R.  330 

Brooks  V.  Blanshard,  1  C.  ft  M.  779 

V.  Cock,  3  Ad.  ft  E.  138,  4  N.  ft  M.  652 

Brouncker  v.  Scott,  4  Taunt.  1 

Brown,  Ex  parte,  1  Yes.  ft  B.  60 

V.  Croome,  2  Stark.  N.  P.  C 

V.  Glenn,  16  Q.  B.  254  . 

V.  Mallett,  5  C.  B.  599  . 

— ^ V.  Robins,  4  Ilurlst.  ft  N.  186 

».  Wilkinson.  15  M.  ft  W.  391 

Brownlow  v.  Metropolitan  Board  of  Works,  13  C.  B.  K.  S.  768 
Buckridge  v.  Ingram,  2  Yes.  inn.  652      .... 
Bulmer,  app..  Norris.  resp..  9  C.  B.  N.  S.  19,  K.  ft  G.  321 
Burges  v.  Wickham,  33  Law  J.,  Q.  B.  17 

— ,  33  Law  J.,  Q.  B.  17,  3  Best  ft  Smith  669 

Burlaiid  v.  Kingstou-upon-HuU  (Local  Board  of  Health),  32  Law 
Burnett  v.  Hooper,  1  Fost.  ft  Fin.  412,  467      . 

Burnside  o.  Dayrell,  3  Ezch.  224 

Burton  v.  Tannahill,  5  Ellis  ft  B.  797 

Busk  V.  Royal  Exchange  Assurance  Company,  2  B.  ft  Aid.  72 
Butler,  £z  parte.  In  re'  Bakewell.  2  M.  D.  ft  De  Gez  731 

».  AWewhite,  6  C.  B.  N.  S.  740 

».  Hohson,  4  N.  C.  290,  5  Sooit  798      .... 

5  N.  C.  128,  5  Scott  824     .... 


PACK 

122, 124,  130,  137.  141 
.  632 
328,  n. 
.  594 
.  720 
.  700 
.  227 
.  138 
.  670 
.  410 
.  591 
.  659 
527,  529,  533 
.      75 

611,  613 
.    229 

105,  109 

125,  128 
.  720 
.  92 
806,  n. 

160,  168 
39,42 
.  362 
.    744 

834,  836 
.      75 

336,  338 
.    162 


297 


230 


^tterfield  v.  Forrester,  11  East  60 

Caledonian  Railway  Company,  ap 
Campbell  v.  Corley,  28  Law  T.  10 


,  8prot»  reap.,  2  Maoq.  449 


743 

456 

231 

29 

401 

706 

715 

426 

811 

755,  756,  758 

672 

404 

459 

251,  252,  255,  774 

94 

103 

252 

257 

524,  523,  526,  532 

145,  n. 

.  308 

B.17  194 

809,  n. 

.  161 

20,  21,  23 

.  138 

674,  679 

618,  n. 

672.  678,  679 

679 

770 


J.,Q.: 


93,94 
.  782 


TABLE  dF  CASES  CITED. 


ziu 


2  Harbt.  &  N.  267 


338 


&R 


PAOB 

.      3S 

.  850 
.  362 
.  782 
.  672 
.    474 

732,  743 
.  252 
.  757 
.  38 
.    385 

740,  741 
.    792 

412,  428 

335,  339 

.    714 

.      76 

.    407 

632 

122 
21 


809, 


625,  627|  D. 
724 


Campbell  e.  Stein,  6  Dow  116  . 

Castelli  o.  Groom,  18  Q.  B.  490 

CMtrique  v.  Imrie,  8  C.  6.  N.  S.  1  . 

Catterall  v.  Cateerall,  1  Rob.  E.  R.  304 

Chambers,  In  re.  3  Mont.  &  Ayr.  294,  2  Deacon  394 

Chandler  v.  Vilest,  2  Wms.  Saand.  117,  n. 

Chapman  v,  Monmoathshire  Railway  and  Canal  Co. 

V.  Rothwell,  E.  B.  &  E.  168 

Chappel  V.  Comfort,  10  C.  B.  N.  S.  802 

Chappell  9.  Bray,  3  Law  J.,  Ezch.  24 

Chasemore  v.  Richards,  2  HarUt.  &  N.  168,  7  House  of  Lords  Cases  349 

,  7  House  of  Lord  Cases  349 

Chew  V.  Holroyd,  8  Exch.  249  . 

Child  V.  Affleck,  9  B.  &  C.  403,  4  M.  &  R 

Chinery  v.  Yiall,  5  Hurlst.  &  N.  288 

Chisman  v.  Count,  2  M.  ft  G.  307,  2  Scott  N.  R.  569 

Clayton  v.  Corby,  5  Q.  B.  415,  2  Gale  ft  D.  174 

Cleayer  v.  Sarraude,  1  Campb.  268  . 

Clifford  V.  Laton,  3  C.  ft  P.  15,  M.  ft  M.  101    . 

Cochrane  r.  Fisher,  2  C.  ft  M.  581,  4  Tyrwh.  424  (in  error,  1  C.  M. 

5Tyrwh.496)        .... 
Cockerell  v,  Aucompte,  2  C.  B.  N.  S.  440 
Cocks  o.  Peachey,  2  M.  ft  Ry.  420    . 
Coe  9.  Clay,  5  Bingh.  440,  3  M.  ft  P.  57 
Coges  9.  Bernard,  2  Ld.  Raym.  909,  Com.  133, 1  Salk.  26,  3  Salk.  11,  Holt  13    588, 

705,707,710 

Colchester  Case,  1  Peck.  508 496 

(Mayor,  ftc.,)  9.  Brooke,  7  Q.  B.  339 776 

Cole  9.  Green,  7  Scott  N.  R.  682,  6  M.  ft  G.  872 811,812 

Collins  9.  Blantem,  1  Smith's  Leading  Cases,  5th  edit  337     ...        .    810 
Copland,  app.,  Bartlett,  resp.,  6  C.  B.  18,  2  Lutw.  Reg.  Cas.  183   478, 480, 481, 482, 

483,  484,  486 
Cook,  app.,  Humber,  resp.,  11  C.  B.  N.  S.  33  .       503,  505,  507,  508,  510,  511 

Cooke  9.  Tonkin,  9  Q.  B.  936 161 

■■  9,  Wildes,  5  Ellis  ft  B.  328 403 

Cooper  9.  Barber,  3  Taunt.  99 738 

9.  Walker,  2  Best  ft  Smith  770 233 

Corby  9.  Hill,  4  C.  B.  N.  S.  556 229 

Comman  9.  Eastern  Counties  Railway  Company,  10  Ezch.  771       .        .        .    230 

Cortis  9.  Kent  Waterworks  Company,  7  B.  ft  C.  314 811 

Cotton  9.  Wood,  8  C.  B.  N.  S.  568 594 

Coupland  9.  Hardingham,  3  Campb.  393 228,  231 

CoTell  9.  Gerts,  9  Law  Reporter  for  July,  1846  (American)    .        .        .        .708 

Coventry  Case,  1708,  16  Journ.  129 497,  499 

Cowell  9.  Edwards,  2  Bos.  ft  P.  268 438 

Cox  9.  Burbidge,  13  C.  B.  N.  S.  430 774 

Coxhead  9.  Richards,  2  C.  B.  569,  603      ....      406,410,426,428,429 

Craythome  9:  Swinburne,  14  Yes.  160,  164 438 

Curwen  9.  Salkeld,  3  East  538  .        . 71,  78 

Cutter  9.  PoweU,  6  T.  R.  320 649,712,713 

Dalrymple  9.  Dalrymple,  2  Hagg.  C.  C.  54 788 

Davidson  9.  Gwynne,  12  East  381 660,  667 

Daries  9.  Mann,  10  M.  ft  W.  546 .770 

r, P.  Price,  6  Law  Times  N.  S.  713 192,195,198,201 

9.  Williams,  16  Q.  B.  546      .  753,  754 

,  app.,  Waddington,  resp.,  7  M.  ft  G.  37,  8  Scott  N.  R.  807,  1  Lutw. 

Reg.  Cas.  159        . 504 

Deering  9.  Winchelsea  (Earl),  2  Bos.  ft  P.  270 438,  439 

Delafield  9.  Tanner,  5  Taunt.  856,  1  Marsh.  391 475 

De  Lisle  9.  Priestman,  1  Browne's  Penn.  R.  (American)  176  .        .        .        .    708 

Delisser  9.  Towne,  1  Q.  B.  333 627,  db 

Dell  9.  King,  2  Hurlst.  ft  Colt.  84 827,  d2&^' 

Demandray  9.  Metcal^  Pre.  Ch.  419,  2  Yem.  691 705 


<!▼ 


TABLE  OF  GASES  CITED. 


De  lUitsen  o.  Lloyd,  6  Ad.  &  £.  456,  6  N.  &  M.  776 
Dickenson,  In  re,  £z  parte  Turquand,  3  Mont.  D.  4  De  G.  475 

Dimes  r.  Petley,  15  Q.  B.  270 

Dixon  r.  Robinson,  3  Mod.  107        ...        . 

V.  Sadler,  5  M.  A  W.  405,  414        ..        . 

Dobson,  app.,  Jones,  resp.,  5  M.  &  G.  112, 8  Soott  N.  R.  80, 
Doe  d.  Edmunds  v,  Llewellen,  2  C.  M.  A  R.  503      , 
Domett  9.  Beckford,  5  B.  ft  Ad.  521         ... 
Don  Francisco,  32  Law  J.,  Adm.  14         .        . 
Doubleday  v.  Muskett,  4  M.  ft  P.  750,  7  Bingh.  110 
Downing,  app.,  Luekett,  resp.,  5  C.  B.  40,  2  Liutw.  Reg. 

Downton  Case,  1  Luders,  493 

Doyle  0.  Lawrence,  2  L.  M.  ft  P.  368       ..        . 
Drayton  v.  Dale,  2  B.  ft  C.  293,  3  D.  ft  R.  534 
Dunoroft  V.  Albrecht,  12  Sim.  189    .        .        ;       . 
Dunman  v.  Bigg,  1  Campb.  269        .... 
Dutton  V.  Powles,  2  Best  ft  Smith  174,  191      . 
V.  Solomonson,  3  B.  ft  P.  582 


Cas. 


ILutw.Reg. 


33 


Sdie  9.  East  India  Company,  1  Sir  W.  Bl.  295,  299 
Bdwards  v.  Hall,  6  De  dez,  M'N.  ft  G.  74 
Bidsfortli,  app.,  Farrer,  resp.,  4  C.  B.  9,  1  Lutw.  Reg.  Cas.  517 
Blliott  V.  North  Eastern  Railway  Company,  32  Law  J.,  Chan,  ' 
BUis  9.  Bridgnorth  (Mayor,  ftc),  15  C.  B.  N.  S.  52 

9.  Hunt,  8  T.  R.  464 

Ktherington  9.  Parrot,  Salk.  118,  2  Ld.  Rajm.  1006 
Bvans,  In  re,  Ez  parte  Storks,  2  Rose  B.  C.  179  . 
'   ■        ft  Finch*s  Case,  Cro.  Car.  473       ..        . 

9.  Porster,  1  B.  ft  Ad.  118     ...        . 

^ 9.  Harris,  2  Yes.  ft  Bea.  361         ... 


Faulkner,  app.,  Upper  Boddington  (Ofersaerg),  resp.,  3 
Feize  9.  Thompson,  1  Taunt.  121 


CB, 


Ferguson  9.  Mahon,  11  Ad.  ft  £.  179,  3  P.  ft  D.  143 

Fisher  9.  Prowse,  2  Best  ft  Smith^  770 

Fitch  9.  Jones,  5  Ellis  ft  B.  238 

Fortitude,  2  Dods.  Adm.  R.  58 

Fowler  9.  Coster,  10  B.  ft  C.  427,  5  M.  ft  R.  352 

Fox  9.  Clifton,  4  M.  ft  P.  676,  6  Bingh.  776 

Franklin  9.  Miller,  4  Ad.  ft  £.  599  . 

Freeman,  app.,  Gainsford,  resp.,  11  C.  B.  N.  S. 

French  r.  Backhouse,  5  Burr.  2727  . 

Fryer  a  Kinnersley,  15  C.  B.  N.  S.  422  . 

^eon  9.  Chambers,  9  M.  ft  W.  460 


Gardiner  v.  Jolliooe,  12  C.  B.  N.  S.  568  . 
Gardner  9.  Slade,  13  Q.  B.  796 
Garrett  9.  Melhuish,  4  Jurist  N.  S.  493    . 
Gibbe  9.  Knightley,  2  Hurlst.  ft  N.  34     . 
Gibson  9.  Small,  4  House  of  Lords  Cases  353 

^ 9.  Sturge,  10  Exch.  622         .        . 

Oilbari  9.  Dale,  5  Ad.  ft  E.  543 

Gilpin  9.  Fowler,  9  Ezoh.  615  . 

Gloucestershire  Case,  Orme  121 

Glynne  9.  Roberts,  9  Ezch.  253 

Godson  9.  Home,  1  Brod.  ft  B.  7       « 

Goldson  9.  Buck,  15  East  372  . 

Gore  p.  Grey  (Bart),  13  C.  B.  N.  S.  138  . 

Qracie  9.  Maryland  Insurance  Company.  8  Cranch  84 

Graham  9.  Barras,  5  B.  ft  Ad.  1011 . 

Great  Central  Gas  Consumers  Company  9.  Clarke,  11  C.  B.  N. 


68.  K.  ft 


G.448 


402 


632, 


N.S 


picm 

.       .     74 

.    439 

.    770 

.        .      7i 

124,  ISO,  133 

.Cas.  105    504 

.    564 

.    757 

.    667 

157,  160,  168 

.     508,509 

.    495 

.        618,  a, 

672,  678,  n. 

.    533 

.    407 

.        .    773 

.    716 


634, 
756, 


..  302 

.    534 

540.546 

94,  n. 

281,11. 

.  333 
640,640 

.    672 

.  509 
757,  768 

.    846 


412 


48a 
624 
369 

227,  230,  231,  233,  243 
.  319 
108,  111 
.  675 
.  160 
.  713 
.  489 
.  33 
808,  n. 
673,  677 


S.  814 


(in  error).  13  C.B.N. 


•  170 
.  411 
657,  660 
.  466 
.  123 
.  665 
.  594 
,  407 
.  496 
.  623 
.  705 
.  671 
.  567 
.  299 
.  129 
574 
574 


S.838 


Great  Indian  Peninsular  Railway  Company  v.  Saundera,  1  Best  ft  Smith  41, 
2  Best  ft  Smith  266 291,295,300,302,303 


TABLE  OF  CASES  CITED. 


zv 


Oriifwold  V.  New  York  iDsuninee  Co.,  3  Johns.  (American)  321 

Qndgen  r.  Bassefc.  6  Ellis  A;  B.  986 

Qj9  V.  Felton,  4  Taunt.  876 


Hackwood  IT.  LjaU,  17  C.  B.  124 

Haigh*8  Estate.  In  re,  31  Law  J.,  Chan.  420    ..        . 
HaineSf  app..  Roberts,  resp.,  7  Ellis  &  B.  625  ... 
Hambidge  v.  De  la  Croupe,  3  C.  B.  742    . 
Hammack  v.  White.  11  C.  B.  N.  S.  588    . 
Hancock  p.  Aasten,  14  C.  B.  N.  S.  634    . 

V.  York,  Newcastle,  and  Berwick  Railway  Co.,  10  C 


Harland  r.  Emerson,  8  Bligh  N.  S.  62 

Harmer,  app.,  Bell,  resp.,  7  Moore^s  P.  C.  267 105 

Harmond  v,  Pearson,  1  Campb.  515 776 

Harris  ».  Ryding.  5  M.  &  W.  60 91 

Harrison  v.  Bnsh,  5  EllU  &  B.  344,  348   .        .409,  419.  421,  427,  428,  429.  431,  n. 
0.  London.  Brighton,  and  South  Coast  Railway  Co.,  2  Best  ft  Smith  122  592 


PAOB 

653,  658,  659 

.        .      41 

.    318 


.      29 

.     193, 199 

.      92 

33 

694,  774,  n, 

459,  n. 

B.  348     252,  776,  n. 


p.  299,  n. 


Hassel  r.  Long,  2  M.  ft  W.  363 

Hatch  p.  Lewis,  7  Hurlst  ft  N.  367 

Haiton  p.  Royle,  3  Horlst  ft  N.  500 

Havelock  p.  Rookwood,  8  T.  R.  268 

Hawken  p.  Bourne,  8  M.  ft  W.  703  . 

Hayward  r.  Duff,  12  C.  B.  N.  S.  364 

Ileartlev,  app.,  Banks,  resp.,  5  C.  B.  N.  S.  40,  K.  ft  O.  219 

Heath,  app.,  llaynes,  resp.,  3  C.  B.  N.  S.  389,  K,  ft  G.  199 

Helme  p.  ^ith,  7  Bingh.  709,  5  M.  ft  P.  774 

Helps  p.  Winterbottom,  2  B.  ft  Ad.  431    . 

Henderson  p.  Henderson,  6  Q.  B.  288 

,  11Q.B.  1015  . 

Herbert  p.  Sayer,  5  Q.  B.  965,  Dav.  ft  M.  723 
Hermann  p.  Seneschal,  13  C.  B.  N.  S.  392,  403 
Herschfeld  p.  Clarke,  11  Ezch.  712 
Herver  p.  Dowson,  Bull.  N.  P.  8 
Hibbert  p.  Martin,  Park  Ins.,  6th  edit,  vol.  1, 
Hick,  In  re,  8  Taunt  694         ... 
Hiekie  p.  Salamo,  8  Ezch.  59    . 
Hilton  p.  Giraud,  1  De  Gez  ft  S.  187 
Hinton  p.  Dibbin,  2  Q.  B.  646,  2  Gale  ft  D.  36 
Hochster  p.  De  la  Tour,  2  Ellis  ft  B.  678 
Hodgkinson  p.  Ennor,  32  Law  J.,  Q.  B.  231 
Hodgson  p.  Duce,  2  Jurist,  N.  S.  1014      . 
Holdsworth  t.  Wilson,  8  Law  Times  N.  S.  434 

p.  Wise,  7  B.  ft  C.  794.  1  M.  ft  R.  673 

Holland  p.  Russell,  1  Best  ft  Smith  424    . 

,  in  error,  32  Law  J.,  Q.  B.  297 

Holt  p.  Brien,  4  B.  ft  Aid.  252 

p.  Meddowcroft,  4  M.  ft  Selw.  467    . 

p.  Odber,  11  East  118        ..        . 

Hope,  1  W.  Rob.  154       .... 
Hopewell  p.  De  Pinna.  2  Campb.  113 
Hopkins  p.  Nightingale.  1  Esp.  N.  P.  C.  98 
Horrocks,  Ez  parte,  8  Law  Times  N.  S.  663 
Hoansell  p.  Smyth,  7  C.  B.  N.  S.  731 
Hntton  p.  Osborne,  1  Selw.  N.  P.  445,  I2th  edit 
Hatton  p.  Upfill,  2  House  of  Lords  Cases  674 

IMerton  p.  Jewell,  14  C.  B.  N.  S.  665      . 

larie  p.  Castriqne,  8  C.  B.  N.  S.  405 

Irring  p.  Clegg,  4  M.  ft  Scott  572,  1  N.  C.  53  . 

Jarris  p.  Rogers,  15  Mass.  R.  (American)  389 
Jessop  p.  Lutwyche,  10  Ezch.  614    . 
Jinks  p.  Edwards,  11  Ezch.  775       ..        . 
John  and  Mary|  Sw8.bey*8  Adm.  R.  471  . 


214 
.  791 
.  33 
.  362 
.  633 
.  837 

488,  490,  504 
.  488 
.  32 
.  715 
.  369 
369,  n. 
670,  671,  672,  678 
.  805, 806 

809,  810,  814 
.  407 
124.  n. 
.  188 

618,  619,  620 
.  533 
.  588 
.  713, 716 
.  738 
.  456 
.  190,  192 
.  138 
.  326 
.  329 
.  634 

188, 192,  198 
.  715 

106,  107,  111 
.  782 
.  506 
.  739 
.  229, 230 
.  588 
.  162 


.  829 
.  362 
.  801 

.  336 
318,  320,  321,  322,  323 
.  724 
104,  111.  H2 


ZVl 


TABLE  OF  CASES  CITED. 


Johnson  v.  Baker,  4  6.  &  Aid.  440  . 

V.  Midland  Railway  Company,  4  Exch.  367 

».  Stear,  15  C.  B.  N.  S.  330 

V.  Sumner,  3  Hurlst.  &  N.  261  . 

Jones  t>.  Cliff,  1  C.  &  M.  540,  3  Tyrwh.  576 

V.  Davis,  16  Ves.  262      ..        . 

V,  Richard,  6  Ad.  &  E.  530     . 

Josephs,  In  re,  £z  parte  Spyer,  32  Law  J.,  Bankruptcy 
Judson,  app.,  Luckett,  rcsp.,  2  C.  B.  197,  1  Lutw.  Keg.  Cas.  490 


PAOK 

.   .   .   .   39 

.  692.  693,  694 

.  708 

631,  632,  634,  637,  644 

.  333 


Kalamazoo,  15  Jurist  885 

Kearney's  Case,  Alcock's  Reg.  Cas.  22    . 

Keith  V,  Pratt  (not  reported)   . 

Kelly  V.  Solari,  9  M.  4  W.  54  . 

Kemp  V,  Westbrdok,  1  Ves.  sen.  278 

Kilshaw  v.  Jukes.  32  Law  J.,  Q.  B.  217  . 

King  V.  Thorn,  1  T.  R.  439       ..        . 

V.  Watts,  8  C.  &  P.  614    . 

Kingston  (Duchesses)  Case,  2  Smith's  L.  C. 

^ p.  Knibbs,  1  Campb.  508,  n. 

Knight  V.  Cambers,  15  C.  B.  562     . 


682 


Lade  o.  Shepherd,  2  Stra.  1004         .... 
Laforest,  In  re,  Ex  parte  Bell,  32  Law  J.,  Bankruptcy  50 
Lancashire  Wagon  Company  v,-  Fitzhugh,  9  Hurlst.  &  N.  502 
Lang  V,  Anderdon,  3  B.  C.  495,  5  D.  ft  R.  393 
Laix)che  v,  Wakeman,  Peake.  N.  P.  C.  140 
Lawrence  v.  Hodgson,  1  Y.  s  J.  16 

Lee  0.  Gansel,  Cowp.  1 

— ,  app.,  Hutchinson,  resp.,  8  C.  B.  16,  2  Lutw.  Reg.  Cas. 

—  V,  Kisdon,  7  Taunt.  188 

Leg)c  V.  Cheesebrough,  5  C.  B.  N.  S.  741 

Le  Neve  r.  Mile  End  Old  Town  (Vestry),  8  Ellis  &  B.  1054 

Lewis  V,  Great  Western  Railway  Company,  5  Hurlst.  ft  N. 

Livie  V.  Jansen,  12  East  648 

Lloyd  V,  Jones,  6  C.  B.  81 

Lockwood  V,  Ewer,  2  Atk.  303         .... 

V.  Wood,  6  Q.  B.  31 

London  Assurance  From  Fire  v.  Bold,  6  Q.  B.  514  . 

London  and  North  Western  Railway  Co.,  app.,  Dunham,  resp. 

Ltjcas  V.  Dorrien,  7  Taunt.  278,  1  J.  B.  Moore  29    . 

V.  Godwin,  3  N.  C.  766,  4  Scott  502 

hnke  V,  Lyde,  2  Burr.  882,  887        ...        . 
Lutwidge  o.  Gray,  cited  in  Luke  v,  Lyde,  2  Burr.  882 
Lycett  V.  Tenant,  4  N.  C.  168,  5  Scott  479,  6  Dowl.  P.  C.  436 
Lynch  v,  Nurdin,  1  Q.  B.  29,  38 


846 
74 
63 

504 


.    106 

.     505,  508,  510 

.      39 

.    328 

.       .    705 

.    461 

.    359 

.    407 

.    356 

.    126 

319,  321,  322,  323 


159 


867 


,  18  C 


M'Dougall  V.  Claridge,  1  Campb.  268       ..        . 

M'Gaw  v.  Ocean  Insurance  Company,  23  Pickering  (American) 

M'Manus  v,  Lancashire  and  Yorkshire  Railway  Co.,  4  Hurlst  ft 

Manby  v.  Scott,  1  Siderfin  109 631, 

Martin  v,  O'llara,  Cowp.  823 

r.  Reid,  11  C.  B.  N.  S.  730  . 

».  Strong,  5  Ad.  ft  E.  535     . 

Maryland  Insurance  Co.  o.  Bosley^  9  Gill  ft  Johnson  337 

Mason  v.  Tucker,  4  Hurlst.  ft  N.  536 

Merchant  v.  Driver,  1  Saund.  307    .... 

Metcaire  v.  Hetherington,  11  Ezch.  257   . 

Midland  Railway  Company,  app.,  Bromley,  resp.,  17  C. 

Millership  v.  Brookes,  5  Hurlst.  ft  N.  797 

Milnes  r.  Duncan,  6  B.  ft  C.  671,  9  D.  ft  R.  731      . 

Mitcheson  v.  Oliver,  5  Ellis  ft  B.  419 

Mondel  v.  Steel,  8  M.  ft  W.  858,  871 

Monk  V.  Sharp,  2  Hurlst  ft  N.  540 


405 

N. 


B.372 


.  230 
.  697 
.  337 
122,  125,  128 
.  673 
190,  n. 
.  506 
480,  485 
.  714 


\: 


826 


327 


636, 


827 
230 
592 
299 
791 
708 
74 
212,  214,  216.  219 
593,  n. 
.  333 
.  655 
654,  657,  660,  665 
.  658 
192,  198 
.  770 


.  407 

.  659 

349   589 

,  639,  640,  644 

676 


.  705 
.  426 
.  299 
.  448 
.  372 
.  772 
590,  n.,  594 
.  42 
328,  n. 
29 

654,  659,  667 
.  434,435 


TABLE  OF  CASES  CITED. 


xvii 


M<m]u  r.  Dykes,  4  M.  &  W.  567     .... 
Montagne  r.  Benedict,  3  B.  &  C.  631»  5  D.  &  R.  532' 
Moon  V.  Alderbury  Union,  3  Ezch.  590  . 
Moonom  v.  Page,  4  Campb.  103      .... 
Morant  v.  Chamberlin,  6  Hurlst.  &  N.  541       .        . 
Morgan,  £z  parte,  In  re  Woodhouse,  32  Law  J.,  Bankruptcy 

r.  Tart,  11  Exch.  82 

Morton  v.  Copeland,  16  G.  B.  517 

Mould  V.  Williams.  5  Q.  B.  469,  D.  ft  M.  631  . 
Murray  v.  Stair  (Earl),  2  B.  &  C.  82,  3  D.  ft  R.  278 
Muschamp  o.  Lancaster  and  Preston  Junction  Railway  Co., 
Mussen  v.  Price,  4  East  147     . 
Myers  v.  Perigid,  11  C.  B.  90  . 

,  16  Simons.  533 

,  2  De  G.  M'N.  ft  O.  599 

c.  Rawson,  5  Hurlst  ft  N.  99 

c.  Willis,  17  C.  B.  186  . 

Mytton  V.  MidUmd  Railway  Company^  4  Hurlst.  ft  N,  615 

Nelson  9.  Cherrill,  7  Bingh.  663,  5  M.  ft  P.  680 

,  1  M.  ft  Scott  452,  8  Bingh.  316 

V.  Couch,  15  C.  B.  N.  S.  99 


Xewbold  and  The  Metropolitan  Railway  Company,  14 
Newman  v.  Walters,  3  B.  ft  P.  612 
New  RiTcr  Company,  app.,  Johnson,  resp.,  29  Law  J., 
North  r.  Great  Mortnem  Railway  Company,  2  Giff.  64 
Northampton  (Mayor)  v.  Ward,  1  Wils.  107    . 
Norton  ».  Fasan,  1  B.  ft  P.  226 


M. 


Ord  V.  Tenwick,  3  East  103 

O'Reilly  v,  Gonne,  4  Campb.  249     .        . 

■  V.  Royal  £!xchange  Assurance,  4  Campb.  246 


N.S. 
93 


Owen  9.  Burnett,  2  C.  ft  M.  353,  4  Tyrwh.  133        ..        . 
Oxlade  and  The  North  Eastern  Railway  Co.,  In  re,  1  C.  B.  N, 


Palmer  and  The  Metropolitan  Railway  Co.,  In  re,  31  Law  J, 
Parry  v.  Croydon  Commercial  Gas  Company,  1 1  C.  B.  N.  S. 
p.  Davies,  1  L.  M.  ft  P.  379 


Passingham,  app.,  Pitty,  resp.,  17  C.  B.  299 
Pater  v.  Baker,  3  C.  B.  831 


Patrick  o.  Shedden,  2  Ellis  ft  B.  14         ... 
Pattison  v.  Jones,  8  B.  ft  C.  578,  3  M.  ft  R.  101 

Paulr.  Dod,2C.B.800 

Peacock  v.  Sir  G.  Reynal,  2  Brownl.  ft  G.  151 

Peek  0.  North  Staffordshire  Railway  Co.,  E.  B.  ft  £.  980 

-,  (in  error),  32  Law  J., 


Perry  v.  Barker,  8  Ves.  527,  13  Ves.  198 

V,  Bennett,  14  C.  B.  N.  S.  402       ..        . 

PetUgrew  r.  Pringle,  3  B.  ft  Ad.  514  ..  . 
Phillips  V.  Hopwood,  1  B.  ft  Ad.  619  ..  . 
Pierce  p.  Chaplin,  9  Q.  B.  802 

V.  Morrice,  2  Ad.  ft  B.  84,  96,  4  N.  ft  M.  48 

Piers,  app.,  Piers,  resp.,  2  House  of  Lords  Cases  331 
».  Tjb  '     "  '^         .---.. 


rnrle,  1  Dtury  ft  Walsh,  279,  299 
Pha9.0arell,6M.ftW.  234  .... 

Pitt  9.  Donovan.  1  M.  ft  Selw.  639  . 
Pitts,  app.,  Smedley,  resp.,  7  M.  ft  G.  85, 8  Soott  N.  R.907, 
Pbnchi  V.  Colbum,  8^  Bingh.  14.  1  M.  ft  Soott  51 
Phmnner  o.  Woodhume,  4  B.  ft  C.  625.  7  D.  ft  R.  25 
Pointi,  app.,  Attwood,  resp.,  6  C.  B.  38,  2  Lulw.  Reg.  Cm.  117 
Pontet  o.  Ricroft,  1  Saund.  322,  n. 
F6tlMmier  tr.  Dawson,  Holt;  N.  P.  C.  383 
Pmlon  «.  Tam|din,  2  Hurlst  ft  N.  684  , 
Friee  v.  Derwhuxst,  4  Mylne  ft  Cr.  76 
0.  B.  N.  B.,  VOL.  XY.— 2 


15 


PAoa 

.    509 

635,  636,  637 

211,  219 

800,  802 

.    230 

.    818 

.    467 

811,  812 

738,  743 

.      40 

M.  ftW.421  .    580 

'    .        .     714,715 

529,  530,  533,  535 

529,  530,  533,  535 

529,  530,  533,  535 

20,  21 

.      29 

.    590 


405 


.  676 
671,  676 
775,  n. 
.  732 
.  34 
.  740 
.  456 
.      74 

.  6a?. 


859 


.    131 
.    131 
58H 
S.454  680,692,694 


<l.  B.  259 
579    . 


190,  192 

.    669 

618,  n. 

560,564 

.    411 

.    862 

408,  426,  429 

713,  714,  715 

.     410, 418 

589 

Q.B.241  !     591,597 

.    108 

450,  n. 

122,  125,  128,  140 

.    676 

.    888 

.    810 

784,  D. 

.        .        .    784 

.       .        .      7fi 

41» 

60S 

718 

.    868 

.        .    6^15 

.    VS 

701,  W,  "m 

Sft 

.     .  m 


L«tw.R^.€as.l68 


xviii  TABLE  OF  CASES  CITED. 


PAGE 

Prior  V.  Hembrow,  8  M.  &  W.  873 442 


Proudfoot,  £z  parte,  1  Atk.  252 


Radnor  (Earl)  v,  Reere,  2  Bos.  &  P.  391 

Ralli  v.  Janson,  6  Ellis  &  B.  422     . 

Ratcliff0.  Davis,  Yelr.  178      .... 

Rayne,  £z  parte,  1  Q.  B.  382  . 

Read  v.  Coker,  16  C.  B.  850     . 

V,  Victoria  Station  and  Pimlico  Railway  Co., 

Reading  Case,  2  Doug.  E.  C.  105     ..        . 

Redway  ».  Webber,  13  0.  B.  N.  S.  254    . 

Reneaux  o.  Teakle,  8  Ezch.  680       ..        . 

Regina  ».  Barrett,  32  Law  J.,  M.  C.  36,  9  Cox  Cr.  Cas.  255    .'    .        .        . '    15 


672 


737 

.        .        .        .        .297 

705 

33 

806,  n. 

1  Hurlst.  &  Colt.  826  732, 

739,  743,  756,  749 

.    492 

.    330 

631,  632,  635,  636,  645 


737 
738 
624 
738 
812 
6Q.B.  750  .   .  744 


V.  Bolton,  1  Q.  B.  66,  4  P.  &  D.  679 

V.  Dayman,  7  Ellis  A  B.  672 

V,  Fall,  1  Q.  B.  636      .        .        . 

V.  Hickling  (Inhabitants),  7  Q.  B.  880 

».  Humphrey,  10  Ad.  &  E.  335,  2  P.  &  D.  691 

*  V.  Lancaster  and  Preston  Junction  Railway  Co. 

e.  London  and  North  Western  Railway  Co.,  3  Ellis  A  B.  443        732,  742, 

743,  746,  747,  n. 

V.  Manwaring,  4  Dears.  &  B.  C.  C.  132 783 

V.  Metropolitan  Board  of  Works,  32  Law  J.,  Q.  B.  105       .        .        .    742 

__ Railway  Company,  Ex  parte  Horrocks,  8  Law  Times 

N.  S.  663      .        ...        .        .        .        .        .        .     739, 742 

».  Millis,  10  Clark  &  F.  534 788 

©.  Rochester  (Mayor,  &c.),  7  Ellis  &  B.  910 811 

R«id  V,  Hoskins,  5  Ellis  &  B.  729 716,  n. 

(in  error),  6  Ellis  &  B.  953 716,  n. 

».  Teakle,  13  C.  B.  627 631,  633,  636,  645 

Beynell  ».  Lewis,  15  M.  &  W.  517  . 160,  162 

Reynolds  v,  Harris,  3  C.  B.  N.  S.  267 624,  626 

Rex  0.  Aire  and  Csdder  Navigation,  3  B.  &  Ad.  139 527 

c.  Birmingham  (Inhabitants),  6  B  <k  C.  29,  2  M.  &  R.  231      .        .        .    811 

r.  Brampton  (Inhabitants),  10  East  292 785.  788 

V,  Cotterill,  1  B.  &  Aid.  67 73,  74,  78 

r.  Gravesend  (Mayor,  &c.),  3  B.  &  Ad.  240 810 

V.  Great  and  Little  Usworth,  5  Ad.  &  E.  261,  2  N.  &  M.  811   .        .        .    509 

r.  Halesworth  (Inhabitants).  3  B.  &  Ad.  717 494,  n. 

r.  Leake.  2  M.  &  N.  595,  6  B.  &  Ad.  469 230 

V,  Lloyd,  1  Campb,  261 230 

V.  Northleach  Roads  Trustees,  5  B.  A  Ad.  978 574 

V,  Palmer,  1  B.  &  C.  646,  2  D.  &  R.  793 527 

V.  Pedley,  1  Ad.  &  E.  822,  3  N.  &  M.  627        ....     226.  230,  236 

V.  Portmore  (Lord).  1  B.  A  C.  551,  2  D.  A  R.  798 527 

V.  St.  Gregory,  Canterbury,  2  Ad.  A  E.  106,  4  N.  A  M.  137    .        .        .810 

v.  Starkey,  7  Ad.  A  E.  95,  2  N.  A  P.  169 71,  79 

».  Thomas,  2  B.  A  C.  128 527 

p.  Watts,  1  Salk.  357.  2  Lord  Raym.  856 228.234 

Rich  9.  Basterfield,  4  C.  B.  783 226,  236 

V,  Coe,  Cowp.  636,  639 32 

Ridley  p.  Plymouth,  Stonehouse,  and  Devon  port  Grinding  and  Baking  Com- 
pany, 2  Exch.  711 ,        .    471 

Ridsdale  p.  Ncwnham,  4  Camp.  Ill,  3  M.  A  Selw.  456   .       122,  125,  127,  128,  140 

Ringland  p.  Lowndes,  15  C.  B.  N.  S.  173 456,  n. 

Roberts  p.  Haines,  6  Ellis  A  B.  643 92 

p.  Hunt,  15  Q.  B.  17 230 

-: p.  Orchard,  33  Law  J.,  Exch.  95 806,  n. 

Robotham  p  Wilson,  8  Ellis  A  B.  123,  8  House  of  Lords  Cases  348        .        .      92 

Rogers  p.  Clifton,  3  Bos.  A  P.  587 425 

p.  Macnamara,  14  C.  B.  27 804,  n. 

Rohl  p.  Parr,  1  Esp.  N.  P.  C.  445 299 

Rose  p.  Groves,  5  M.  A  G.  613,  6  Scott,  N.  R.  645 72 

Rosetto  p.  Gorney,  11  C.  B.  176 300,  301 


TABLE  OF  CASKS  CITED. 


xlz 


RoQX  V.  SalTador,  1  N.  0.  526,  1  Scott  491      . 

(in  error),  3  N.  C.  266,  4  Scott  1 

Ruddock  V.  Marsh,  1  Harlst  <ft;  N.  601    . 

RuBsel  V.  Thornton,  4  Hurlst.  &  N:  788  (in  error,  6 

Ryan  o.  Shilcock,  7  Exch.  72  . 


Sadler  r.  Nizon  (or  Hickson).  5  B.  ft  Ad.  936,  2  N. 
Salmon  v.  Bensley,  R.  &  M.  189 
Samuel,  app.,  Hitchmough,  reap.,  13  C.  B.  N.  S.  3, 
Sandwich  Oase,  10  Joum.  457 


jN. 


.  R.  919, 


Saunders  p.  Bate,  1  Hurlst.  ft  N.  402 

Saxonia,  1  Lushington's  Adm.  R.  410 

Schiliasi  o.  Derry,  4  Ellis  ft  B.  882  . 

Score,  app.,  Huggett,  resp.,  7  M.  ft  G.  95,  8  Scott 

Scott  r.  Parker, TQ.  B.  809, 1  Gale  ft  D.  268  . 

Seaton  0.  Benedict,  5  Bingh.  28,  2  M.  ft  P.  66 

Shand  e.  Grant,  15  0.  B.  N.  S.  324 

Sheels  r.  Davies,  4  Campb.  119 

Sheffield  Canal  Go.  v,  Sheffield  and  Rotherham  Railway  Co.,  1 

Shields  e.  Davies,  6  Taunt.  65 

Shipman  v.  Stevens,  2  Wils.  50 

Shipton  V.  Thornton,  9  Ad.  ft  £.  314, 1  P.  ft  D.  216 

Shore  0.  Bentall,  7  B.  ft  C.  798,  n. 


Siebel  p.  Springfield,  9  Law  T.  N.  S.  325 
Siiuons  V,  Great  Western  Railway  Company,  18  C 
Simson  v.  Fogo,  29  Law  J.,  Ch.  657        ... 

,  on  appeal,  32  Law  J.,  Chi  249 

Sijis  V.  Brittain,  4  B.  ft  Ad.  375,  1  K.  ft  M.  594 


B.805 


I,  7  Dowl. 


385,  387, 
P.  C.'282 


388, 


SUde  p.  Drake,  Hobart  295 
Smart  p.  Morton,  5  Ellis  ft  B.  30 
Smith  p.  Homor,  3  C.  B.  N.  S.  829 

p.  Hull  Glass  Company,  11  C,  B.  897 

p.  Kenrick,  7  C.  B.  515 

p.  Neale,  2  C.  B.  N.  S.  67 

p.  NicoUs,  7  Scott  147,  5  N.  C.  222, 

p.  Richardson,  Willes  20 

p.  Smith,  2  Stra.  955      . 

Somerrille  p.  Hawkins,  10  C.  B.  583 

Southampton  Dock  Company  p.  Richards,  1  M.  ft  G.  448, 1  Scott  N.  R. 

Southcote  p.  Stanley,  1  Hurlst.  ft  N.  247 

Spear  p.  Trayers,  4  Campb.  251 

SpraU  p.  Harris,  4  Ha^^.  Eccl.  R.  405 

Spyer,  £x  parte.  In  re  Josephs,  32  Law  J., 

Stafford  (Marquis)  p.  Coyney,  7  B.  ft  C.  257 

Stindt  p.  Roberts,  5  D.  ft  L.  460      . 

Stinton  p.  Hall,  1  Hurlst.  ft  N.  831 

Stirling  p.  Forrester,  3  Bligh  575     . 

Stockman  p.  Parr,  11  M.  ft  W.  809  . 

Storks,  Ex  parte.  In  re  Evans,  2  Rose  B.  C.  179 

Stratton  p.  Pettit,  16  C.  B.  240 

Stroud  p.  Deacon,  1  Yes.  sen.  37      .        .        . 

Stroylan  p.  Knowles,  6  Hurlst  ft  N.  454 

Sudbury  Case,  Phillips  149      .... 

Swanoott  p.  Westgartb,  4  East  75    . 


Talbot  (Earl)  p.  Scott,  27  Law  J.,  Ch.  273 
Taunton  Case,  1  Doug.  E.  C.  370    .        . 
Tayler  p.  Waters,  7  l^unt.  374,  2  Marsh.  551 
Taylor  p.  Hawkins,  16  Q.  B.  308     ..        . 
p.  Whitehead,  2  Dougl.  745 


Hurlst  ft  N.  140) 


ft  M.  258 
K.  ft  G.  522 


Bankruptcy  63 


Tenant  p.  Goldwin,  1  Salk.  360,  2  Lord  Raym.  1089 
Thames  Ironworks  Co.  p.  Patent  Derrick  Co.,  1  Johns,  ft  H. 
Thelluson  p.  Fergusson,  Dougl.  360         .        .        •        • 
Thompsett  p.  Bowyer,  9  C.  B.  N.  S.  284  .       •       . 


Lutw. 


PhUl 


93 


.R. 


.  442 
.  226 
.    540 

493,  498, 499 
.  425 
.  774 
.    123 

Cas.  198  503 
.  812 
636,  637 
666,  n. 
.  654 
484  .    853 

660,  667,  756 
.  474 
.  300 
.  138 
339,  n. 
593,  n. 
362,  n. 
362,  n. 


827, 


FAQS 

.  659 
.  659 
632,634 
.  327 
.    459 


.      77 

92,95 

.    794 

.    472 

,  390,  391,  392 

.    722 

.    362 

.    401 

337,  D. 

403,411 

219  .    811 

252,  254,  772 

333 

371 

,  828,  831,  832 

230 


758' 
667 
438 
706 
672 
721 
846 
94 
494 
715 

456 
491 
719 
403 
235 
738 
705 
126 
467 


M  TABLE  OP  CASES  CFTED. 

PAGH 

ffibAmpson  p.  Hwey,  4  Hurlst.  &  N.  254 Sll 

^!I1!1-1— p.  Ingham,  14  Q.  B.  710 738,743 

Tffl  f!,  Vil^n,  7  B.  4i  C.  684,  1  M.  &  R.  580 671,  675 

io4d  ^  Flight  9  a  B.  N.  a  377     ......      -227,231,236,252 

Z —  t?.  HaFWns,  2  M.  &  Eob.  20,  8  C.  ik  P.  88 407 

Toms,  app.,  Luokett,  reap.,  5  G.  B.  23,  2  Lutw.  Reg.  Oas.  19  .        .         .         .503 
Topgopd  5.  Spyring,  1  C.  M.  &  R.  181, 4  Tyrwh.  5d2    406, 410, 419, 421, 427, 431,  n. 

tpoker  ».  Smith,  1  Hurlst.  &  N.  732 .         .         .722 

Bp^tilJ  0.  Dougl^,  8.  Law  Times  N.  a  426 23,  25 

BQiroa^lidt!.  CrQwdj,  8C.  B.  K  S.  477 328 

Fmss  V,  Savage,  3  EIUs  A  B.  36 722 

Cocker  0.  Wilsoo,  1  P.  Wms.  261 ,     7<H,  70$ 

tudba^,  app.,  Bristol  (Town  Gkrk),  resp.,  7  Seott  N.  R.  486,  5  M.  &  O.  6,   1 

Xiutjir.  Reg,  Gw,  7 541 

l^er  V.  Pavieq,  2  Esp.  K.  P.  G.  478 436,  4^0 

XDIMlu«lid,  Ex  parte.  In  re.Dick«nBOB,  5  Mont  D.  ft  De  O.  47^      •         •         •    ^^'^ 

^9011 V.  Ei^ns,  12  Ad.  &  £.  733,  4  P.  &  P.  396 402 

fjQrn^an  V.  Smith,  6  Ellis  &  B.  719 1&9,  ]<.^ 

ISrtor  9.  SqU.  2  Mf  be  ft  Gr.  89 r'7J 

T$^pio.aiiu^,9Ad.ftE.406,  IN.  ftp.  784 73 

V^nKiejr^ee  v.  Willis,  3  Bro.  G.  0.  21 '^05 

T<)|ant,  1  M.  Rob.  383,  1  Notes  of  Gases  in  the  Ecclesiastical  Gourt  603        .    S\n 

^^Oifije  V.  le^aiUatid,  5  B.  ft  Aid.  171 ff H 

\ir<a]^  V.  Sviith,  5  B.  ft  Aid.  439 i<>r> 

W^psey,  app.,  Perkins,  resp.  (Hill's  Gase),  7  M.  ft  G.  151,  8  Soof^t  N.  R.  978, 

1  Lntw.Reg.  Cas.  252 Hil 

: : : —  (Quigley's  Gase),  7  M.  ft  G.  127,  8  Scott  N.  R. 

^54^  1  Lujtw.  Reg.  Gas.  235  . M<J 

r^afburton  p.  Loyelanii  d.  Irie,  1  Hudson  ft  Brooke  623.  648         ..        .    Pll 

Fafdv.  Turner,  .2  Ves.  sen.  431, 337,.. 

rarman  p,  HaJahau,  30  Law  J.,  Q.  B.  48 616,  619,  6  H 

F:arrep  ».  Varr^,  1  C.  M.  ft  R.  250 4\ii 

vsvier^ow  v,  Dob^on,  30  Law  Times  1^ 6 1  $ 

Wff^U  p.  Spratiey,  10  Ezch.  222 530,  632,  534,  f  rM 

Weiunan  0.  Ash,  13  a  B.  836 4iU 

Whitakcgr  p.  Sumper,  20  Pick.  R.  (American)  399 340,  :. 

TfWtep.  Crifi^lOBwh.  312  .        .    ' 251,  7^/ 

miteleyn.  Adams,  15  G.B.N.  8.392 808,  .r. 

Viutwpll  p,  Perrin.  4  G.  B.  N.  &  412 29,  .U 

Wbyte.».  Rose,  3Q.R493,  2GaleftD.  312 368,  3 ri 

Wild  Ranger,  32  Law  J.,  A4m.  49 775 

Wilki^s  r.  Aikin,  17  Ves.  442 456 

\p}iams  p.  Adams,  2  Best  ft  Smith  312 738 

-.^— ^  p.  Allsupp,  10  G.  B.  N,  S.  4i7 30  n. 

r— r- »..HaU,6i)eGex,M'N.ftG.74 530 

Wil^onr.  Brett,  IIM.  ft  W.  113 686 

-^-7 .app.«  Roberts,  xesp.,  11  G.  B.  N.  S.  60.  .  .     697,  508,  510 

-T— -.».  Tooker,  5Bro.P.G.  193 706^708 

M^ttiei?  p.  Reynolds,  2  B.  ft  Ad.  882 713 

Wplverhampton  New  Waterworks  Go.  o.  Hawksfoid,  7  G.  B.  N.  8.  795      811,  8J:2 

Af  09d  c.  Lake,  Sayer  3 739. 

-^TT-u.  Leadbitt^r,  13M.  ftW..838       .......     719,722 

r.  SutcUffe,  2  Sim.  N.  S.  163 456 

^^toodsj;.  Foote,  IHoiast.  ftGoIt.841 830,  «at 

WMdw^rd  IV  Lander,  6  G.  ft  P.  548  404. 

Tggghtr.  Woodgate,  2G.M.  ftR.573,1^yr«|i.*a.ia-        ....    430 

Wpid  IV  Hopkins,  15  M.  ft  W.  517  . 160,  Itf 

-;.rr:-tvPickford,8M.ftW.448 S8^ 

lGft|«o.Fon^2WiQ«u6Mnd.l:l» f^ 

ZiriBKBf  V.  SbMnaOa,  7  Taunt  266,  IJ.  B.  Mmm  t2rlMi  K.  P.  Q;  696        .    m 


TABLE  OF  STATUTES  CITED. 


BDWARD  I.  PAGB 

3,  c  14.    Statute  of  Westminster  1 15 

UENRY  VI. 
8,  c  7.    Qualification  of  county  voter 47^ 

CHARLES  II. 

12,  c.  24,  sa,  1,  5.    Copyholders 5dd,  562 

^,  c  3,  s.  4.    Statute  of  Frauds 532 

SB.  4, 17.    Statute  of  Frauds :  signi^fKr*  by  im  i^ttt     •  .599 

WILLIAM  III. 
i^dblO,  o.  15,  s.  1.    Sabmission  to  reference        «;•.••    373 

OfiOftQE  II. 

3,  o.  25,  8.  15.    StrikinRspecial  jury 198 

14,0.43.    Portsmouth  Water  Act 571 

lt4,  c.  78.    Nortfaleach  and  Witney  Roads  AA 674 

26,  c  33.    Marriage :  Lord  Hardwicke's  Aet ?87 

$2,  c.  c.    Cromford  Canal  Act 726 

36,  c.  8.    Statute  of  Mortmain 530,  534 


GEORGE  III. 
32,  c.  102.    Portsmouth  Improvement  Act 
43,  c.  99,  8.  244.    Horse-dealer:  duty 
53,  c.  159.    Shipregistiy  Act 

0.  clxzxiv.     Waterloo  Brid^  Act 
56,  c.  Ixiii.    Waterloo  Bridge  Act 

58,  e.  xxviii.    Waterloo  Bridge  Act 

59,  c.  12,  s.  7.    Appointment  of  assistant-ovenie^r 


.  571 
.  737 
.  33 
236,  n. 
236,  n. 
236,  n. 
515, 516 


GEORGE  IV. 
1  4>  2,  e.  etx.    Nortfaleach  and  Witney  Roads  Aet 574 

3,  c.  XX  r.    Bamsloy  Improvement  Act 264 

4,  e.  76.    Marriage  Act 783,  n. 

5,  c  126)  s.  73.    General  Turnpike  Act :  accounts 574 

cw  cxxxvii.    Alliance  British  and  Foreign  Life  md  Fire  Assuranee  Act     203 

•,  a  16,  s.  50.    Bankrupt:  setrOiT .848 

s.  72.    Bankrupt :  order  and  dispositieii 674 

10,  c.  Ixxiii.,  8.  27.    Croydon  Improvinaent  Aet 568 

7  GEORGE  IV.  ^  1  WILLIAM  IV. 

e.68;    Carriers  Act 586 

(xxi) 


xxii  TABLE  OP  STATUTES  CITED. 

WILLIAM  IV.  PAGK 

1,  c.  22.    Examination  of  witnesses  abroad 849 

1  A  2,  c.  56,  8.  25.    Bankrupt :  yeoting  of  estate 670 

2j  0.  45,  s.  19.    Qaalification  of  voter 563,  564 

8. 26.    Registration  of  voters 480,  n» 

8.  27.    Registration  of  voters :  qualification  as  tenant  .        .     488,  500 

8.  36.     Discjualification  by  alms 485 

8. 47.    Notice  of  objection .     540 

2,  c.  xlv.     St  Leonard's  Improvement  Act 604 

c.  xci.  8.  71.    Hastings  Improvement  Act :  bathing         .        .        <        .    600 

3&4,  c.  15.    Dramatic  copyright ',  license 811 

c.  42,  8.  17.    Writ  of  trial :  new  trial     .   .        .        .        .        .        .457 

c.  74,  8.  91.    Conveyance  of  property  by  a  married  woman      .        .    833 

5  &  6,  c.  50,  8.  73.    Highway :  dedication  of 221 

obstruction  on 743 

0.  76.    Municipal  Corporation  Reform  Act 55 

6  &  7,  c.  32.    Benefit  society 468 

c.  86,  88.  24,  47.    Hackney  Carriage  Act :  driver^s  license         •        .    803 

7  WILLIAM  IV.  &  1  VICTORIA, 
c.  22.    Lancaster  and  Preston  Junction  Railway  Act  .        •        •        .        •    744 

VICTORIA. 

I  &  2,  c.  110.  8.  102.    Insolvent  debtor :  insane  prisoner     ....    567 
5,  c.  22,  8.  14.    Queen's  Prison  Act :  insane  prisoner  ......    567 

6  A  7,  c.  18  8.  17.    Notice  of  objection 539,  543 

8.  23.    Notice  of  objection 542 

8. 74.    Mortgagor 480 

8.  101.    Interpretation  clause 516,  n. 

Amendment 548 

^    0.  85,  8.  18.    Roman  Catholic  marriage 781 

c.  86.    Hackney  Carriage  Act 803 

7  &  8,  c.  110.    Qualification  of  voters :  members  of  joint-stock  company    .  518 

c.  110.    Joint-Stock  Companies  Act 58 

8  A  9,  c.  16,  8.  7.    Companies  Clauses  Consolidation  Act :  shareholders      .    527 

c.  18,  88.  21,  68.    Lands  Clauses  Consolidation  Act :  compensation  .    726 

0.  106,  8.  3.  '  Void  lease 720 

c.  109.    Gaming 316 

9&10,  c.  93.    Lord  CampbelPs  Act 221 

c.  95,  8.  58.     County-court:  title  to  land,  &c 791 

8.  128.    County-court:  concurrent  jurisdiction      .        .        .  '616 
c.  dv.    Ambergate,  Nottingham,  and  Boston,  and  Eastern  Junction 

Railway  Act.  1846 727 

10,  c.  15,  8.  21.    Gas  Clauses  Act:  penalties  for  fouling  water    .        ..       .    568 

10  Jk  11,  c.  14.     Markets  and  Fairs  Clauses  Act 60 

c.  14,  8.  32.    Markets  and  Fairs  Clauses  Act,  1847        .        .        .275 

c.  17.    Waterworks  Clauses  Act,  1847 740 

c.  34.  Towns  Improvement  Clauses  Act,  1847  ....  600 
c.  89.  Towns  PoUce  Clauses  Act,  1847  ....  284, 600 
c.  cxxiv.    Croydon  Commercial  Gas  Act 568 

II  A  12,  c.  43,  8.  5.    Aiding  and  abetting  or  prooaring  the  commission  of 

an  offence 3 

3.63.    Public  Health  Act,  1848 52,174,257 

8.  189.    Public  Health  Act,  1848 600 

12  &  13,  c.  106,  8.  171.    Bankrupt:  set-off 847 

88.  178,  181.    Bankrupt:  execution 695 

13^14,0.61,8.11.    County-court:  costs 620,622 

8.  12.    County-court:  costs 791 

c.  115.    Industrial  and  provident  societies 20 

14  &  15,  c.  98,  88.  1,  2,  13.    Boaitl  of  health:  provisional  orders         .        .    600 

15  &  16,  c.  31.    Friendly  Societies  Act 19 

c.  54,  8.  4.    Costs:  concurrent  jurisdiction    ....     616,790 


TABLE  OP  STATUTES  CITED.  xxiii 

VICTORIA  {continued).  pagk 

15  &  16,  c.  76,  8.  2.    Common  Law  Procedare  Act,  1852 :  appearance  by 

infant 474 

B.  151.    Common  Law  Procedare  Act,  1852 :  bail  in  error    .    444 
8.  222.    Common  Law  Procedure  Act  1852 :  amendment    .    463 

16  &  17,  c.  24.    Public  Health  Act,  1853 .264 

c.  96.    Lunacy  Act 567 

c,  25,  8.  1 .    Industrial  and  provident  societies       .        .        .        .19 
c.  31,  88.  1,  7.    Railway  Traffic  Act,  1854      ....     582,  680 

c.  xzxiz.    New  River  Company's  Act 740 

c.  104,  8.  504.    Merchant  Shipping  Act:  part-owner      .       32,  102,  108 

SB.  296,  297,  298.    Merchant  Shipping  Act,  1854 :  collision     774 
0.  125,  8.  1.    Common  Law  Procedure  Act,  1854 :  trial  without  a 

jury .189 

8.  17.    Common  Law  Procedure  Act,  1854:  making  sub- 
mission a  rule  of  court 375 

17  &  18,  c.  125,  8.  38.    Common  Law  Procedure  Act,  1854 :  appeal,  bail  on,    442 

8.  50.    Common  Law  Procedure  Act,  1854 :  discovery         .  809 
8.51.    Common  Law  Procedure  Act,  1854:   interrogato- 
ries          839 

88.  79,  81,  82.    Common  Law  Procedure  Act,  1854:  injunc- 
tion   450, 454 

8.  68.    Common  Law  Procedure  Act,  1854 :  mandamus      .  173 

18  &  19,  c  120.  Metropolis  Local  Management  Act 233 

c.  133.  Limited  Liabilit)r  Act,  1855 58 

19  &  20,  c.  40.    Industrial  and  provident  Bociedes 22 

0.  47.    Joint-stock  company :  freehold  interest      .        .         525,  n.  532 

20  ft  21,  c.  14.    Joint-stock  company :  freehold  interest     .        .  525,  n.  532 

21  &  22,  c.  98.    Local  Government  Act,  1858 52,  257 

23  &  24,  c.  xxxvi.    Nottingham  and  Qrantham  Railway  and  Canal  Act, 

1860 727 

c.  125.    Metrop^olis  Gas  Act 574 

c.  151.    Coal-mine  regulations 3 

24,  c.  10,  s.  15.    Judgment  of  Admiralty  Court 107 

24  ft  25,  c.  134,  88.  149,  180.    Bankrupt:  execution 'i95 

8.  153.    Bankrupt:  Bet-off Ml 

ss.  192,198.    Bankrupt:  deed  of  arrangement  .        .        .815 

25  ft  26,  c  87.    Industrial  and  provident  societies 19 


xxiv  ABRIDGMBNTS,  ETC. 


ABRIDGMENTS. 

PAGB 

Baeon'tf  Abridgment,  Grants  (H.) 75 

Joint  TenanU  (L),  2 756 

Libd(A.) *        .        .  410 

Coiiiyn«*8  Digest,  IM  (A.  4.) 42 

Grant  m,U) 75 

Action  {K,l) 108 

Action  upon  the  eoMe/or  Defamation  (G,  5)  .        •        •        .  401 

'                            Action  upon  the  caiufar  a  AvtaoJice  (A.  8)  .        .        .        .75 
CWmin  (D.  6) 235 

'  mortgage  {J^,) 705 

9nt,^fan«  (G.l. 

Yiaer's  Abridgment,  Copyhold  (0.) 559 

.  X»2{AV2 410 


Ro^le'fl  Abridgments  JV^faiM  (G.)>  pl- 2 *J^ 

^'     ■    '  "    '    1(0.) 


MAXBL 
Omnia  prsssumnntur  rite  esse  acta •       •     787,  788 


RULES  OF  COURT, 


Hilary,  2  W.  4,  r.  74 623 

Hilary  Term,  1853,  r.  7.    Directions  to  masters      ......  .447 

r.  16.    Delivery  of  papei^books        .        .        .        .         11 ,  n. 

Micbaelmas  Term,  1857.    Paper-books  on  appeals  from  justices    .        .         11,  n. 


YEAR  BOOKS. 


11  H.  4,  fo.  47  b 75 

41  B.  3,  fo.  24  b 7ft 


GA.SES 

•  •  • 

ABQUED  iO^B-pST^BMINED 

•  *  *    * 

COURT  OF  C0Mm6N-'P..LEAS 

',  -•  -'^ 
ASD  ni  vu  ■  ,•'•••"  • 

EXCHEaUER    CHAMBEfcvA 

•  -  :.  • 

€tml\\  Jfaration, 

TWENTY-FIWH  AOT)  TWENTY-SIXTH  TBABS  OF  THB 
BSIGN  OF  YIGTOBIA.     1863. 


MEMORANDA. 

The  Right  Hon.  Sir  Cresswell  Cresswell,  Knt.,  the  first  Judge  Or- 
dinar  J  of  the  Probate  and  Divorce  Courts  rformerly  one  of  the  judges 
of  the  Court  of  Common  Pleas),  died  on  tne  evening  of  Wednesday, 
the  29th  of  July,  1868,  at  his  residence,  Prince's  Gate,  Knightsbridge. 
His  death  was  accelerated  by  an  accidental  collision  whilst  riding  home 
from  court  a  few  days  previously. 

On  the  8d  of  September,  1863,  the  Hon.  Sir  James  Plaisted  Wilde, 
one  of  the  Barons  of  the  Court  of  ♦Exchequer,  took  the  oaths   r^g 
on  his  appointment  as  Judge  Ordinary  of  the  Probate  and  Di-   *- 
vorce  Courts,  in  the  room  of  The  Right  Hon.  Sir  Cresswell  Cresswell, 
KnI.,  deceased. 

On  the  3d  of  October^  1863,  Mr.  Serjt.  Pigott  took  the  oaths  on  his 
appointment  as  one  of  the  Barons  of  Her  Majesty's  Court  of  Exche- 

Juer,  in  the  room  of  Mr.  Baron  Wilde,  promoted  to  the  office  of  Judge 
rdinary  of  the  Probate  and  Divorce  Courts. 

On  the  same  day  Sir  William  Atherton,  Her  Majesty's  Attorney- 
General,  resigned  his  office. 

Sir  Boundell  Palmer,  Knt.,  Her  Majesty's  Solicitor-General,  was 
thereupon  promoted  to  the  office  of  Attorney-General :  and  Robert 
Porrett  Collier,  Esq.,  one  of  Her  Majesty's  Counsel  learned  in  the 
tiaw,  was  appointed  Her  Majesty^s  Solicitor-General. 


MEMORANDA.    T.  V.  1863. 


In  the  course  of  this  vacation,  William  Henry  Cooke,  Esq.,  of  the 
Inner  Temple,  John  Gray,  Esq.,  of  th^ -Middle  Temple,  John  Joseph 
Powell,  Esq.,  of  the  Middle  Temple,^tfnd  -George  Lock,  Esq.,  of  the 
Middle  Temple,  were  appointed  HeKM^jesty's  Counsel  learned  in 
the  Law.  .  ':**•. 


^3,  VOHNHOWELBS,/ Appellant;  THOMAS  WYNNE,  Inspec- 
-'  tor  of '•Ijjttrfes,  Respondent.    June  22. 

B7  ft  ipeeial  rnle  for  tK{  regaUtion  of  ooRl-mines  under  the  23  k  24  Viet.  e.  151,  the  buiki- 
man  ii  directed  to  '^  If  ke  dwre  that  the  personi  deioending  or  aflcendiog  the  pit  shall  in  no  ease 
exceed  the  number* (freight  men  and  boys."  A  breach  of  these  rules  is  bj  s.  22  punishable  on 
summary  conviel^oA.b^  fine  and  imprisonment 

A.,  the  cljarterci&aater  of  a  pit  (who  by  the  rules  is  declared  to  be  "the  responsible  manager 
of  the  pi^ul(j^^is  charge*'),  was  close  to  the  pit,  and  was  cognisant  that  more  than  eight  men 
were  ^efn^Jawered  down  at  one  time,  and  had  power  to  prevent  the  banksman  (who  is  his  am-- 
TanA)  ifurt  lo  doing,  and  did  not  interfere : — 

Her<}',«that  A.  was  properly  oonvicted  of  a  breach  of  the  regulations,  as  being  a  person  "aid- 
ing, abetting,  or  procuring  the  commission  of  the  offence,"  within  the  11  A  12  Vict.  o.  43,  a.  &. 

This  was  an  appeal  against  a  decision  of  jastices,  pursuant  to  the 
20  &  21  Vict.  c.  43.  ^ 
•  The  appellaftt  is  the  charter-master  at  the  Dark  Lane  Coal  Pits,  ^n 
^  \  the  Prij^rs  Lee  colliery,  itf  the  county  of  Salop,  and  appeared  before 
the  justices  on  the  24th  of  March,  1863,  in  obedience  to  a  summons 
issued  upon  an  information  laid  by  Thomas  Wynne,  Her  Majesty's 
inspector  of  coal-mines  for  the  county  of  Salop,  which  information 
charged  that  Bichard  Bichards,  late  of  Priors  Lee,  in  the  parish  of 
Shiffnal,  in  the  said  county,  on  the  29th  of  December,  1862,  at  the 
parish  of  Shiffnal,  in  the  said  division  and  county,  being  then  an(} 
there  the  banksman  of  a  certain  coal-pit  there  situate,  called  the  Dark 
Lane  Pit,  belonging  to  the  Priors  Lee  colliery,  did  then  and  there 
permit  and  suffer  more  than  eight  persons  to  descend  the  said  pit  at 
one  time,  to  wit,  that  he  did  then  and  there  allow  twelve  persons  to 
descend  the  said  pit  at  one  time,  contrary  to  the  24th  special  rule  then 
in  force  for  the  regulation  of  the  said  colliery,  established  in  pursu- 
ance of  the  23  k  24  Vict.  c.  151,  and  that  one  John  Howells  (the  ap- 
pellant), late  of  Priors  Lee  aforesaid,  being  then  and  there  the  charter^ 
master  of  the  said  pit,  was  then  and  there  present,  and  did  then  and 
there  aid  and  abet  the  said  Bichard  Bichards  to  do  and  commit  the  of- 
fence aforesaid,  contrary  to  the  statute  in  such  case  made  and  provided. 

The  following  is  an  extract  from  the  special  rules  to  be  observed 
in  the  Shropshire  collieries,  made  in  pursuance  of  the  23  &  24  Vict, 
c.  151  :— 
*41       *"  ^^'  ^^^  charter-master  shall  be  the  responsible  manager  of 

-*  the  pit  under  his  charge,  or,  in  his  absence,  the  underlooker  or 
fireman  :  and,  if  the  charter-master  shall  have  occasion  to  absent  him- 
self from  the  pit,  he  shall  give  previous  notice  to  such  underlooker  or 
fireman. 

"  24.  Every  banksman  or  hooker-on  is  to  give  the  proper  notice  or 
signal  to  the  engine-man  to  lower  or  raise  the  cages  or  baskets  of  coal, 
and  any  person  going  down  or  up  the  pit :  and  he  shall  take  care 
that  the  persons  ascending  or  descending  the  pit  shall  in  no  case  ex- 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)  4 

ceed  in  number  eight  men  and  boys;  and  be  shall  forthwith  give  no- 
tice to  the  charter- master,  underlooker,  or  manager,  of  any  person 
who  may  disregard  his  directions." 

On  the  29th  of  December  last,  twelve  men  were  killed  at  the  pit  in 
question  by  the  breaking  of  a^  certain  apparatus  used  to  attach  the 
cage  (in  which  the  men  descend  to  their  work)  to  the  wire  rope. 

A  man  named  Bichard  Bichards  was  the  banksman  at  the  pit  on 
the  morning  in  question.  He  allowed  twelve  men  to  get  into  the 
cage,  and  gave  the  signal  to  the  engine-man  to  lower  them.  They 
had  only  proceeded  a  few  yards  when  the  apparatus  broke,  and  the 
men  were  precipitated  to  the  bottom,  a  depth  of  270  yards,  and  killed 
on  the  spot. 

An  information  was  afterwards  laid  by  Mr.  Wynne  against  Bich- 
ards for  breach  of  the  24th  rule  above  set  out,  to  which  he  pleaded 
guilty,  and  was  sentenced  by  the  justices  before  whom  the  case  was 
beard  to  two  months'  imprisonment,  with  hard  labour. 

Upon  the  hearing  of  the  information  against  the  present  defendant 
the  following  evidence  was  given : — 

Thomas  Wynne.     "I  am  inspector  of  mines  for  this  district 
produce  a  certified  copy  of  the  rules  applicable  to  all  collieries  ic 
Shropshire.     The  pit  at  which  *the  accident  happened  whereby    r^g 
twelve  men  and  boys  were  killed  on  the  29th  of  December  last,    ^ 
is  in  Shropshire.    The  rules  are  applicable  to  that  pit." 

Noah  Chirms.  "I  am  a  collier.  I  recollect  the  morning  of  the 
accident  in  Dark  Lane  Pit  on  the  29th  December  last  year.  I  got 
to  the  pit  at  5.25  a.  m.  I  could  not  see  how  many  people  were  there. 
When  I  got  there,  there  were  some;  I  cannot  say  how  many;  there 
might  be  a  dozen  or  so.  I  saw  Bichards  there :  he  was  the  banksman. 
I  saw  the  defendant  there  when  I  arrived :  he  is  the  charter-master. 
We  were  all  on  the  bank  together.  I  recollect  the  first  lot  of  men 
going  down.  I  was  one  of  them :  it  went  down  some  time  about  5.80. 
The  defendant  stood  by  the  cabin  door.  The  cabin  is  eight  or  nine 
yards  from  the  pit.  I  got  to  the  pit  five  minutes  before  the  engine 
started.  The  cabin  is  almost  close  to  the  pit:  it  is  not  a  large  place. 
I  cannot  tell  how  many  men  it  would  hold.  Howells  was  outside  the 
cabin  door  when  I  got  to  the  pit.  I  got  into  the  cage  with  the  first 
band.  The  defendant  was  between  the  cabin  and  the  pit  when  the 
band  started.  We  passed  Howells  as  we  got  into  the  cage.  I  was 
one  of  the  last  that  got  into  the  cage.  Twelve  of  us  were  in  the 
cage.  We  went  down  safely.  We  all  came  up  after  the  accident 
occurred." 

Cross-examined.  *'It  was  dark,  but  there  were  lights  on  the  bank 
from  the  rodneys.  Bichards  was  the  banksman.  I  cannot  say  if  any 
one  else  was  on  the  pit  bank.  Corbett  was  there.  I  do  not  recollect 
him  putting  the  bar  in.  Bichards  put  the  bar  in  the  end  I  was  in: 
some  one  put  it  in  the  other  end.  It  was  not  dark';  but  I  was  not 
looking  at  the  other  end.  I  did  not  see  what  became  of  the  defendant. 
I  did  not  see  him  at  the  pit-mouth  doing  anything  after  I  passed  him 
in  going  to  the  cage.  I  cannot  say  how  far  he  was  from  the  door  of 
the  cabin :  three  yards.  ♦!  did  not  see  Parton  or  Whateley  there,  r^g 
It  is  a  round  cabin.  The  door  of  the  cabin  opens  a  little  on  •- 
one  side  of  the  pit :  standing  in  front  of  the  pit  would  be  on  the  left- 


e  H0WELL8,  App.,  WYNNE,  RlsP.    T.  V.  1863. 

band  fiide,  and  formed  ft  sort  of  angle  to  the  door.  I  have  often  beeii 
in  the  cabin.  Any  one  in  the  cabin  and  atai^og  in  the  centre  would 
Bee  the  door." 

Be-examined.  ''It  was  light  enon^h  to  see  what  was  going  on. 
lliere  were  two  fires  on  the  bank.  The  Cabin  door  opetiB  insid&  If 
I  were  standing  in  the  cabin,  with  ray  faee  towards  the  pit,  I  should 
be  on  the  left  side  of  the  eabin«  The  cabin  door  is  on  the  left  side. 
If  I  were  standing  in  the  centre  of  the  cabin,  with  mj  face  towards 
the  shaft,  the  door  would  be  on  the  left  side.  The  cabin  door  was 
open  when  I  left  it.  It  did  not  take  me  more  than  half  a  minute  to 
get  from  the  cabin  to  the  cage." 

Thomas  Corbett.  ''  I  am  a  wheelwright,  and  work  at  the  Lilleshall 
Company's  colliery.  I  remember  the  morning  of  the  29th  of  December. 
I  was  at  the  pit.  I  got  there  about  6.50  a.  in.  I  got  there  before  the 
first  band  went  down.  Noah  Chirms,  his  father,  Richards,  and  defend- 
ant were  there.  Dabbs  was  there  also.  Wd  had  to  Wait  seven  or  eight 
minutes  before  the  first  band  went  down.  I  do  not  know  how.  many 
went  down  in  it :  there  were  a  good  lot :  the  cage  vfka  full.  I  put  ono 
bar  in  the  cage.  Richards  put  the  other  bar.  Richards  gave  me  one 
to  put  in,  and  he  put  the  other  in.  The  defendant  was  in  the  cabin : 
he  came  out  before  the  band  went  down :  he  did  not  come  out  again 
when  I  put  the  bar  in.  I  cannot  say  h^  saw  me  put  the  bar  in.  I  saw 
Howells  when  I  was  going  to  take  the  bAr  from  Richards:  he  was 
cC'ining  from  the  cabin  door  towards  the  pit.  I  did  not  put  the  bar  in 
till  the  people  were  in.  I  did  not  see  Howells  come  out  of  the  cabin 
^tr^  before  the  band  started »     *I  was  examined  before  the  coronet  ou 

-I  oath,  and  swore  then  that  Howells  stood  by  me  when  the  first  band 
^f  out  down.  It  is  true  that  defendant  stood  by  me  when  the  first  band 
went  down.    All  I  have  sworn  is  right" 

Cross-examined^     "  It  was  a  dark  morning." 

Re-examined.  *'I  did  not  count  the  men  in  the  band.  I  can  count 
twelve.  I  am  in  the  employ  of  the  defendant,  not  of  the  company. 
1  am  the  defendant's  servant.  I  came  with  the  defendant  here  to-day. 
The  defendant  asked  me  to  come :  he  did  not  tell  me  what  he  wanted 
me  to  come  for:  his  brother  asked  me  to  come.  The  defendant  was 
not  present.  I  came  with  the  defendant  in  a  trap :  his  brother  drove. 
I  did  not  sit  by  the  defendant.  I  did  not  talk  to  him  coming  along. 
1  cannot  tell  what  time  I  got  to  Wellington  this  morning.  I  have  had 
some  conversation  with  -Mr.  Bartlett  (Howells's  attorney)  as  to  the 
evidence  I  was  to  give  to-day.    I  saw  him  this  morning." 

The  evidence  for  the  defence  was  as  follows : — 

Isaac  Whateley.  "  I  am  a  collier,  and  am  in  the  employ  of  Howells. 
I  work  at  the  pit  in  question.  I  was  working  there  on  the  29th  of 
December.  I  remember  the  accident.  On  that  morning  I  got  to  the  pit 
pit  about  5.35  a.  m.  When  I  went  firut  to  the  pit,  some  of  the  men  had 
gone  down  in  the  first  band.  I  went  into  the  cabin,  ttnd  put  my  cap 
on»  Howells  was  in  the  cabin  when  I  came  up.  Parton  went  into  the 
cabin  when  I  went  in.  I  was  there  when  the  accident  happened.  I 
did  nothing ;  I  sat  down  in  the  cabin.  Spoke  to  Howells :  we  were 
speaking  about  the  coal.  Howells  did  not  go  out  of  the  cabin  while 
I  was  there :  he  was  in  the  cabin  when  the  accident  occurred :  he  was 
on  the  left  side,  and  I  was  on  the  right.    From  where  he  stood  in  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  7 

cabin,  he  could  not  hare  seen  Hhe  pit's  mouth.    It  was  a  dark  pg 
Horning :  we  had  the  rodneys  out."  '- 

John  Parton.  ''I  recoHect  seeing  the  defendant  in  the  cabin. 
When  I  went  in,  he  was  talking  about  the  coal,  I  cannot  say  who 
went  in  first,  me  or  Whateley :  we  both  went  in  the  same  time^as 
near  as  I  can  recollect,  Howells  could  not  see  the  pit  from  where  he 
was  standing.  I  can't  tell  what  the  people  were  doing  when  I  went  in. 
The  cage  came  up  for  the  second  band  soon  after  I  went  in.  I  was 
not  there  when  the  first  band  went  down." 

Joseph  Dabbs.  ''I  am  banksman  at  one  of  the  pits  in  question. 
I  remember  the  morning  of  the  accident.  I  came  about  5  o'clock.  X 
remember  the  first  band  dl  men  going  down.  I  was  standing  by  my 
cabin  door :  the  two  cabins  adjoin  one  another,  Howells  came  oat  of 
the  cabin  and  saw  Corbett :  he  turned  into  the  cabin  again,  and  there  ho 
remained  till  the  first  and  second  bands  had  gone  down.  Corbett  assists 
to  send  the  men  down  when  he  is  there.  Howells  could  not  see  the 
cage  lowered.  Hie  cage  was  not  drawn  up  when  Howells  went  out 
of  the  cabin.  As  soon  as  he  saw  Corbett,  he  went  into  the  cabin 
again.  I  saw  Parton  and  Whateley  go  into  the  cabin :  that  was  before 
the  accident,  and  after  the  first  band  went  down." 

Cross-examined.  ''  My  pit  is  about  ten  yards  from  defendant's,  ar  <.l 
is  on  the  same  bank,  ^e  same  engine  works  both  pits.  That  ca^^o 
is  at  the  bottom  at  night  I  got  to  the  pit  at  5  o'clock.  I  have  a 
cabin  as  well  as  the  defendant.  It  is  not  usual  to  let  more  than  eight 
go  down.  I  have  knoi^n  twelve  to  go  down.  The  men  are  not  loii.^ 
going  down.  Four  bands  will  take  my  men  down.  Both  cabins  are 
round.  There  is  a  blacksmith's  shop  between  them :  the  shop  is  betwcy m 
my  door  and  the  defendant's  door.  *Chirms  went  down  in  the  r^^^ 
first  band.  I  saw  him  get  in.  Howelld  was  in  the  cabin.  Chirms  ^ 
was  nearer  Howells  than  I  was.  I  saw  Corbett  put  the  bar  in.  It  is 
an  untruth  if  Chirms  and  Corbett  swore  the  defendant  was  on  f.he 
bank  when  the  first  band  went  down.  I  was  standing  by  my  ca))in 
door.  There  were  a  many  people  about  the  cabin.  I  saw  HowoUs 
turn  into  the  cabin.  I  kept  my  eye  on  the  door;  and  he  did  not  come 
out  till  the  second  band  had  gone  down.  The  band  went  down 
Howells's  pit,  and  then  down  mine.  When  the  band  went  down  my 
pit,  I  went  to  the  catches  to  attend  to  them.  I  draw  the  catches  myaelf. 
While  I  was  doing  so,  I  could  see  the  defendant's  cabin.  I  could, 
a^nd  to  my  duty  and  watch  what,  defendant  waq  doing  at  the  same 
time.  I  had  my  eye  on  the  defendant's  pit ;  my  pit  and  the  c^bia  at 
the  same  time.  I  can  ati^end  to  the  defendant's  pit  as  well  as  mine. 
I  coulf}  qee  wjbat  1^(9  wm  dplng  at  bis  pHi  and  at  the  same  time  attend 
Uy  let  my  men  down.  I  always  look  at  the  defendant's  cabin  door.  I 
watch  that  cabin  door  every  morning.  I  will  i^tswe^r  I  did  not  let 
more  thap. eight  nc^^n  dpwn  (h^t  mpxuipg." 

CbarJp(^  Ovffifu  '<X  xoxn^ip^ber  tia^  29^b  of  Dqoamber.  I  went  to 
t)M»  bailie  vKhea.  tbe  &nit  band  wiaa  jwt  up,  and  ^t  in«  I  did  not  see 
Howells  tb«t  momiiig.  Z  ^o^  intp  the  first  band.  If  SpwelU  h^ 
beeii  th^ro,  I  sfim  b^?^  8QQ»  U^DU.  I.  Ifx^^.  Tpm^  but.  wj^  mff 

Im  X  ^,  Wiw  1)0  wmMH^^imt  *^  ^^  of  %h»  pit^" 

fiVnifiiflMniane^  <<  I  w^m  ^wn  witb  Ae  fint  band.  I  did  Mi 
know  how  many  were  im  titl  I  earae  up  again.    The  cage  was  not 


9  HOWELLS,  App.,  WYNNE,  Resp.    T.  V.  1863. 

very  full :  they  were  most  boys :  there  were  above  eight  people.  The 
band  was  waiting  when  1  got  up.  1  ran  and  jumped  in.  Corbett  was 
*101  "^^^^'^S  ^^  P*^*  *'^®  ^*^  ^^'    When  I  passed  Corbett,  *he  had 

J  the  bar  in  his  hand.  T  was  at  Kichards's  end.  I  was  in  a 
gr^t  hurry  to  get  down.  I  always  lik^  to  get  down  first.  I  was 
late,  and  had  to  run  for  it.  I  live  about  three-quarters.of  a  mile  fronn 
the  pit.  I  ran  from  the  bottom  of  the  bank.  I  did  not  run  as  hard 
as  I  could :  I  did  run.  I  did  not  take  any  notice  if  there  were  many 
people  on  the  bank.  I  cannot  tell  any  one  that  was  on  the  bank,  or 
who  went  down  with  me." 

Alexander  Jones.  *'  I  am  managing  agent  to  the  Lilleshall  Company. 
I  know  the  two  cabins.  If  a  person  was  standing  at  the  door  of  one 
cabin,  he  could  see  a  person  going  in  the  other  cabin." 

Cross-examined.  '*  The  banksman  could  not  keep  his  eye  on  the 
defendant's  cabin  and  attend  to  his  own  duties  at  the  same  time.  After 
he  had  sent  down  the  band,  he  could  look  straight  there.  At  the 
same  time  he  was  sending  the  band  down  his  own  pit,  if  he  were 
attending  to  his  duty  he  could  not  see  what  Howells  was  doing :  he 
could  not  see  two  ways  at  one  time." 

At  the  close  of  the  evidence  for  the  complainant,  the  defendant's 
attorney  contended  that  the  24:th  rule  did  not  make  the  charter-master 
liable  for  the  neglect  of  the  banksman ;  that  there  was  no  evidence 
that  the  defendant  was  aiding  and  abetting;  and  that,  in  order  to 
justify  a  conviction,  it  should  have  been  shown  that  he  had  done 
some  act  or  uttered  some  expression  to  identify  him  with  the  unlaw- 
ful act  Bichards  was  doing. 

The  evidence  satisfied  the  justices  that  the  defendant  was  close  to 
the  pit ;  that  he  was  cognisant  that  more  than  eight  men  were  being 
lowered  down  at  one  time ;  and  that,  under  the  15th  rule,  he  was  the 
person  in  charge  of  the  pit,  and  had  the  power  to  prevent  Bichards 
(who  was  his  servant)  lowering  the  men  down :  and  they  therefore 
♦in  ^^^^^^^^  ^^^  under  the  *above  information,  and  ordered  him 
-'   to  be  imprisoned  for  two  calendar  months,  with  hard  labour. 

The  question  for  the  opinion  of  the  court  was,  whether  the  evidence 
above  set  out  was  sufficient  to  justify  the  conviction. 

Hayes,  Serjt.,  for  the  appellant,  upon  the  case  being  called  on, 
objected  that  the  respondent  was  not  entitled  to  be  heard,  inasmuch 
as  he  had  not  complied  with  the  rule  of  court  as  to  the  delivery  of 
his  paper-books  to  the  two  junior  puisne  judges,  the  appellant  having 
upon  bis  default  duly  delivered  the  whole  of  them.(a) 

Wehby,  for  the  respondent, — the  argument  having  been  adjourned 

(a)  Th«  16th  rale  of  Hilary  Term,  185S,  13  C.  B.  8  (B.  0.  L.  B.  toI.  76),  proTides  that  "foar 
dear  daji  before  the  day  appointed  for  argament  the  plaintifT  shall  deliver  copies  of  the 
demurrer- book,  special  ease,  special  yerdict,  or  appeal  ease,  with  the  points  intended  to  b« 
insisted  on,  to  the  Lord  Chief  Justice  of  the  Queen's  Bench  or  Common  Pleas,  or  Lord  Chief 
Baron,  as  the  case  may  be,  and  the  senior  pnisne  judge  of  the  court  in  which  the  action  is 
brought ;  and  the  defendant  shall  deliTcr  copies  to  the  other  two  Judges  of  the  eourt  next  in 
seniority :  and,  in  default  thereof  by  either  party,  the  other  party  may,  on  f A«  day  following, 
deliver  such  copies  as  ought  to  have  been  so  delivered  by  the  party  making  default :  and  the 
party  making  default  shall  not  be  heard  until  he  shall  have  pidd  for  such  copies  or  deposited 
with  the  master  a  sufficient  sum  to  pay  for  such  copies."  And  by  rule  of  Michaelmas  Terra, 
1857,  S  C.  B.  N.  S.  141  (B.  C.  L.  B.  vol  91),  it  is  ordered  that  in  "  eases  of  appeal  to  a  superior 
oourt  under  the  provisions  of  the  statute  20  k  21  Viet.  e.  43,  the  I5th  and  16th  rules  of  HUary 
Term,  1853,  so  far  as  the  same  are  applicable,  shall  be  observed." 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  11 

for  the  purpose, — produced  an  affidavit  that  the  respondent's  attor- 
ney bad  in  dae  time  delivered  the  paper-books  which  by  the  practice 
of  the  *court  he  was  bound  to  deliver,  to  the  judges'  clerks  m  r^^^ 
their  own  room  at  Westminster.  [Williams,  J. — No  doubt  you  ^ 
delivered  your  copies  in  due  time.  But  the  question  is,  whether  they 
were  delivered  at  the  proper  place.  That,  I  apprehend,  is  the  judges* 
Chambers.]  The  object  being  that  the  judges  shall  have  the  paper- 
books,  it  is  clearly  enough  if  they  are  delivered  to  the  clerks  at 
Westminster  Hall.  [Bylbs,  J. — There  is  a  record  kept  of  what  is  ^ 
done  at  Chambers:  but,  if  the  paper-books  are  delivered  to  the  clerks 
at  Westminster,  it  rests  upon  mere  recollection.  Willes,  J. — There 
must  be  a  place  of  search  to  see  if  the  rule  has  been  complied  with: 
and  where  else  can  that  be  but  the  judges'  Chambers?]  It  may 
perhaps  be  reasonable  to  create  a  practice  for  the  future.  The  rule 
of  court  makes  no  mention  of  the  place  at  which  the  paper-books  are 
to  be  delivered. 

Williams,  J. — The  respondent's  attorney  has  clearly  adopted  an 
erroneous  course.  Our  officers  inform  us  that  the  proper  place  for 
the  delivery  of  paper-books,  is  the  Chambers  in  Bolls  Gardens.  It 
ha!)  been  truly  said  that  no  mention  is  made  in  the  rule  as  to  where 
tl*'!  delivery  is  to  take  place :  nor  is  there  any  other  direction  therein 
irfnin  that  the  plaintiff  shall  deliver  the  paper-books  to  the  Lord 
Chief  Justice  and  the  senior  puisne  judge,  and  the  defendant  to  the 
two  junior  puisne  judges, — not  to  their  clerks.  If  the  rule  were  to  be 
complied  with  literally,  the  paper-books  might  be  delivered  at  the 
judges'  houses,  or  to  the  judges  whilst  riding  or  walking  along  the 
streets.  That  would  be  manifestly  absurd.  There  must  ""be  a  usual 
place  for  their  delivery,  where  the  opposite  party  may  search  whether 
the  rule  has  been  complied  with  or  not,  in  order  that  he  may  supply 
the  defect.  The  respondent's  attorney  being  clearly  in  default,  the 
^appellant's  attorney  was  justified  in  incurring  the  expense  of  p^^g 
delivering  the  additional  paper-books,  and  must  be  reimbursed.  ^ 

Willes,  J. — I  do  not  think  the  rule  of  court  is  so  defective  as 
Mr.  Welsby  suggests.  The  only  proper  place  for  the  delivery  of  the 
paper-books,  is  the  judges'  Chambers. 

Byles,  J. — If  this  were  not  so,  it  would  make  it  necessary  for  the 
attorney  to  search  at  two  places,  when  there  is  only  one  place  at  which 
any  official  record  of  the  transaction  is  kept. 

Welsby  undertaking  that  the  copies  should  be  paid  for,  the  argu- 
ment was  allowed  to  proceed. 

Hayes,  Serjt.,  for  the  appellant. — The  offence  with  which  the  appel- 
lant is  charged  is  created  by  the  11  i  12  Vict  c.  43,  a.  5,  which  enacts 
that  "  every  person  who  shall  aid,  abet,  counsel,  or  procure  the  com- 
mission of  any  offence  which  is  or  hereafter  shall  be  punishable  on 
summary  conviction,  shall  be  liable  to  be  proceeded  against  and  con- 
victed for  the  same,  either  together  with  the  principal  offender,  or 
before  or  after  his  conviction,  and  shall  be  liable,  on  conviction,  to  the 
same  forfeiture  and  punishment  as  such  principal  offender  is  or  shall 
by  law  be  liable  to,"  &c. :  and  the  charge  is,  not  that  the  appellant 
*'  counselled  and  procured,"  but  that  he  was  present  ''aiding  and  abet- 
ting" the  principal  offender  in  the  commission  of  the  offence,  which 
makes  him  a  principal  in  the  second  degree.    The  11th  section  of  the 


13  HOWELLS,  App.,  WYNNE,  Rmp     T.  V.  1863. 

Mines  Regulation  Act,  28  &  24  Vict  c.  151,  provides  for  the  estab- 
lishment of  special  rules  for  the  guidance  of  persons  acting  in  the 
management  of  mines,  and  of  persons  employed  therein :  and  the  22d 
,H^-|  section  enacts  that  every  *per8on  (other  than  the  owner  or  prin- 
^J  cipal  agent  or  viewer)  "employed  in  or  about  a  coal-mine,  col- 
liery, or  iron-stone  min,e,  who  negleots  or  wilfully  violates  any  of  the 
special  rules  established  for  such  coal-mine,  colliery  or  ironstone  mine, 
shall  for  every  such  offence  be  liable,  upon  a  summary  conviction  for 
the  same  before  two  justices  of  the  peace,  &c.,  to  a  penalty  not  ex- 
ceeding 2?.,  or  to  be  imprisoned,  witb  or  without  hard  labour,  in  the 
common  gaol  or  house  of  correction  for  any  period  not  exceeding 
three  calendar  months."  The  oflfence  here  charged  was  committed  by 
Richards  the  banksman,  as  to  whose  duties  there  are  various  reguUv 
tions  in  the  special  rules  besides  the  24th.  [Byles,  J. — ^The  question 
is,  whether  the  appellant,  who  was  the  superior  of  Richards,  is  not 
responsible  for  the  offence  of  Richards,  by  reason  of  his  abstaining 
from  using  his  authority  to  prevent  its  commission.]  There  is  nothing 
in  the  rules  which  requires  the  charter-master  to  see  that  the  banks- 
man does  his  duty.  [Willes,  J. — Do  you  dispute  that  there  was 
evidence  to  justify  the  conclusion  of  fact  to  which  the  justices  came  7  ] 
No.  [Willes,  J. — Then  the  question  is,  whether  the  appellant,  vrhi 
had  authority,  and  whose  duty  it  was  to  forbid  Richards  to  send  dowri 
more  than  eight  men  and  boys  at  one  time,  by  standing  by  and  not 
inter'fering  to  prevent  it,  did  not  virtually,  authorize  and  assent  to  the 
illegal  act  of  Richards.]  Would  the  evidence  sustain  a  charge  of 
manslaughter  against  the  appellant?  In  Hale's  Pleas  of  the  Crown 
438,  it  is  said  :  "To  make  an  abettor  to  a  murder  or  homicide  princi- 
pal in  the  felony,  there  are  regularly  two  things  requisite.  1.  ITe 
must  be  present.  2.  He  must  be  aiding  and  abetting  ad  feloniam  aiit 
murdrum  sive  homicidium.  If  he  were  procuring  or  abetting,  m'A 
absent,  he  is  accessory  in  case  of  murder,  and  not  principal,  unless  Jfi 
•151  ^^™®  oases  of  poisoning.  If  he  be  present,  and  not  *aiding  \v 
-*  abetting  to  tho  felony,  he  is  neither  principal  nor  accessor}  " 
This  latter  is  precisely  the  case  of  the  appellant  here.  He  is  presei-  > 
but  does  and  says  nothing.  Aiding  and  abetting  is  something  acti^«). 
*'If  A.  and  B.  be  fighting,  and  C,  a  man  of  full  age,  comes  by  chattse, 
and  is  a  looker  on  only,  and  assists  neither,  he  is  not  guilty  of  murder 
or  homicide,  as  principal  in  the  second  degree;  but  it  is  a  misprision, 
for  which  he  shall  be  fined,  unless  he  use  means  to  apprehend  the 
felon."  [Willes,  J. — The  real  question  is,  what  was  Howells's  duty. 
If  it  was  nis  duty  to  prohibit  Richards  from  sending  down  the  men 
in  violation  of  the  24th  rule,  and  be  did  not  do  so,  he  was  guihy  of 
the  ofibnce.  "Qui  non  prohibet  quod  prohibere  potest,  assentire 
videtur."]  No  special  duty  as  to  the  desoent  of  the  cage  is  by  the 
rules  imposed  upon  the  charter-master :  that  duty  is  cast  upon  tbe 
banksman.  In  The  Queen  v.  Barrett,  S2  Law  J.  M.  C.  86;  9  Cox  Cr. 
Cas.  265,  it  was  held,  that,  if  a  weekly  teoatrt  of  a  house  use  it  as  a 
brothel,  and  the  landl<H^  receive  no  additfonal  rent  by  reason  of  the 
immortl  ooenpalian,  the  latter  eamnoi  be  oonvided  of  keeping  a  bro* 
tbel«  mereljr  beoause,  baling  notice  of  the  nature  of  the  oeeupatior 
he-does  not  give  the  tenant  notiee  to  quit.  [)WiLLBS,  J. — Lord  Cokx, 
oommenting  ttpon  tbe  word^^de'*  in  tlie  Statute  of  Westminster  1 


COMMO]*  bench  report's.    (15  J.  SCOTT.    N."  S.)  TS 

(8  Ed.  1),  c.  14,  says,^ — 2  Inst.  182, — "  Under  this  word  is  compre*' 
hended  all  persons  counselling,  abetting,  plotting,  assenting,  consent*' 
ing,  and  encouraging  to  do  the  act,  and  are  not  present  when  the  act' 
is  done;  for,  if  the  party  commanding,  furnishing  with'  weapon,  op 
aiding,  be  present  when  the  act  is  done,  then  he  is  principal."  A 
permission,  whether  active  or  passrve,  by  a  person  having  authority 
to  prevent  the  act  beihg  done,  is  iEi  consenting.  WiLLlAlfS;  J.— ^In  all 
misdemeanors,  an  accessory  before  the  fact  is  a  principal.  The  ques-- 
tion  is  whether  the  facts  stated  in  *this  case  could  be  regarded  r^^o 
by  a  jury  as  constituting  Richards  Howells's  agent.]  It  is  sub-  k 
mitt^  they  could  not,  and  consequently  that  he  was  improperly  con- 
victed. 

Welsby,  for  the  respondent,  was  not  called  upon. 

Williams,  J. — The  question  raised  upon  this  appeal  is  precisely 
the  same  as  that  which  would  have  been  raised  for  the  consideration 
of  the  judge,  if  this,  instead  of  being  an  offeilce  punishable  on  a  sum- 
mary conviction,  had  been  made  by  the  statute  an  indictable  offence, 
and  the  appellant  had  been  indicted  jointly  with  iRichards  for  an 
offence  which  constituted  a  violation  of  the  24th  rule  referred  to  in 
the  special  case.  The  question  then  would  have  been,  whether,  if  the 
facts  here  disclosed  were  laid  before  a  jury,  it  would  have  been  the 
duty  of  the  judge  to  stop  the  case,  or  to  leave  it  to  them  to  say  whether 
or  pot  they  were  satisfied  from  the  evidence  that  the  defendant  aided 
and  abetted  Richards  in  the  commission  of  the  offence  with  which 
they  were  charged.  I  am  satisfied  that  in  the  case  supposed  it  wpuld 
have  been  the  judge's  duty  to  leave  the  question  to  the  jury.  The 
derendant  is  found  to  have  been  close  to  tha  pit's  mouth,  and  so  cog- 
nisant of  the  fact  that  Richards  was  permitting  a  larger  number  of 
persons  to  descend  at  one  time  than  is  allowed  by  the  24th  rule.  He 
13  the  person  who  has  charge  of  the  pit,  and  who  has  power  to  pre* 
vent  Richards,  who  is  his  servant,  from  lowering  down  the  cage  so  a^ 
to  violate  that  rule.  Having  authority  to  prevent  the  illegal  act 
being  .done,  and  having  chosen  to  stand  by  and  see  it  done  without 
exercising  his  authority,  he  might  fairly  be  assumed  by  those  who 
are  constituted  the  judges  of  the  fact  to  have  aided  and  assisted  in  the 
doing  of  it.  I  think  the  justices  weref  *clearly  warranted  by  r^^j 
ihe  evidence  in  coming  io  the  conclusion  they  did.  ^ 

WiLLBS,  J.-^I  am  of  the  same  opinion. '  The  respondent  has  clearly 
been  guilty  of  a  breach  pf  the  discipline  necessary  to  be  kept  up  by 
those  who  are  an«wei*ab]e  for  the  safety  of  tU^  nien.  He  wos  present 
when  the  bankpman  let  the  men  down:  It  was  his  duty  to  preVent,— 
and  he  might  have  prevented, — the  illegal  aci,  and  he  did  not.  I 
think  it  is  quite  right  to  look  to  the  most  responsible  persoti,  and  t<^ 
make  an  example  of  him,  and  so  make  it  the  interest  of  those  who  are 
most  open  to  the  dread  of  punishment  to  prevent  such  ofiences  from 
being  committed.  -  The  act  oE  parliament  would  become  a  dead 
letter  if  such  evidence  as  this  would  not  warrant  a  conviction. 

Btlbs,  J. — I  am  of  the  same  opinion.  In  misdemeanors,  all  who 
are  present  when  the  offence  is  committed,  and  have  power  to  prevent 
it,  and  do  not  exert  that  power,  are  equally  guilty  with  him  who  ac- 
tually commits  the  offence.  It  is  plain  here  that  the  respondent  had 
power  and  it  was  his  duty  to  prohibit  Richards  from  doing  as  he  did. 

C.  B.  H.  S.,  VOL.  XV.— 8 


n  HOWBLLS,  Apr,  WYNNE,  Risp.    T.  V.  186S. 

The  jofltioes  find  in  tenns  that  the  respondent  was  the  master,  and 
that  the  actual  offender  was  the  aerrant.  By  standing  by  and  seeing 
ike  ofience  committed,  the  respondent  afforded  active  encouragement 
to  the  actual  offender.  The  justices  dearly  came  to  a  correct  decision. 

Appeal  dismissed,  with  costs. 

There  was  a  second  information  against  the  same  appellant,  charg- 
ing that  he  "on  the  29th  of  Deeember^  1862,  at,  &c.»  being  then  and 
there  the  charter- master  of  a  certain  ooal-pit  there  situate,  called  The 
*181  ^^^^  "^Lane  Pit,  belonging  to  the  Priors  Lee  Colliery,  did  not, 
^  in  the  exercise  of  his  duties  as  such  charter-master,  give  his  first 
and  chief  attention  to  insuring  the  safety  of  the  lives  and  limbs  of  the 
persons  under  his  charge,  contrary  to  the  20th  special  rule  then  in 
force  for  the  regulation  of  the  said  pit  and  colliery,"  established  pur- 
suant to  the  statato. 

The  20th  rule  is  as  follows: — *' Every  charter-master  and  under- 
looker,  in  the  exercise  of  his  duties,  is  hereby  expressly  ordered  in 
all  oases  to  give  his  first  and  chief  attention  lo  insuring  the  safety  of 
the  lives  and  limbs  of  those  under  his  respective  charge,  and  to  sus- 
pend any  or  all  operations  attended  with  unusual  risk,  until  he  shall 
have  received  special  directions  of  the  manager,  and  to  atop  the  work- 
ing or  use  of  any  pit,  engine,  ropes,  machinery,  or  apparatus  that  may 
not  appear  safe,  until  the  removal  of  the  danger." 

The  evidence  was  the  same  as  in  the  former  case ;  and  the  decision 
of  the  justices  was  as  follows : — ^*  The  evidence  in  support  of  the  in^ 
formation  satisfied  ua  that  the  defendant  was  at  the  pit  on  the  morn- 
ing in  question,  that  he  knew  a  breach  of  the  rules  was  being  com* 
mitted,  and  that  he  had  the  power  to  prevent  it.  We  are  also  of 
opinion,  from  the  evidence,  that  the  defendant  did  not  give  his  first 
and  chief  attention  to  insuring  the  safety  of  the  lives  and  limbs  of  the 
men  under  his  charge,  inasmuch  as  he  did  not  suspend  the  operatiou 
e£  lowering  the  men  when  he  knew  there  were  more  in  the  cage  than 
the  number  allowed  by  the  rules.  We  accordingly  convicted  the  de- 
fendant, and  ordered  him  to  be  imprisoned  with  hard  labour  for  two 
calendar  months,  to  commence  at  the  same  period  as  the  former  sen^ 
tence  which  had  been  passed  upon  him." 

The  question  reserved  for  the  opinion  of  the  court,  was,  whether 
(he  evidence  set  out  in  the  case,  was  sufficient  to  warrant  the  convic- 
tion. 

^j^^l       ^Sayei,  Sierjt,  appeared  for  the  appellant^  and  Webby  for  the 
^  respondent. 

Williams^  J. — ^It  follows  from  what  the  court  decided  in  the  last 
ease,  that  the  evidence  in  this  case  warranted  the  conclusion  that  the 
appellant  waa  guilty  of  the  offence  charged  in  the  second  information* 

Bylss,  J. — ^The  t^prilant  was  guilty  of  a  plain  breach  of  both  the 
UMi  a^d  2Qtb  rule.  Appeal  dismissed,  without  costs. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)         19 


DEAN  V.  HELLABD  and  Others.    June  9. 

By  Um  17  A  18  Viet.  e.  35, 1. 1,  it  itm  inroridtd  that  all  Mtloiia  againtt  aa/  looiatj  ailab- 
Bthad  mndar  the  Indaitrial  and  Prorident  Soeietiaf  Aot»  186S  (U  &  16  Viot.  o.  81),  shaU  he 
eommeneed  and  proieeated  against  the  regiitered  oflieer  of  the  loeiety,  or  agaimt  the  tnisteai 
#ha«  there  U  no  re^tered  offloer.  These  aeti  #ere  re^ealad  hy  the  S5  A  19  Yiet  e.  87,  the 
Hh  aeetSoa  of  whieh  providee  thai  <'the  eertlieala  of  regiitraHon  fhall  TOit  in  the  ipoiety  aU 
the  property  that  may  at  the  time  he  Tested  in  any  peraon  in  trvft  Ibr  the  soeiety :  and  aU 
lagal  proeeedingi  Aem  pending  hy  or  agaioft  any  laoh  trustee  or  other  ofloer  on  aeconat 
of  the  ioeiety,  may  he  proseented  hy  or  agatnit  the  soeiety  in  its  registered  name,  withont 


Held,  that  the  offset  of  sneh  repeal  #u  to  rsnder  tiie  memhers  indlrldiially  liaUe  to  he  sved 
in  respeet  of  a  eontraet  made  hy  the  soeiety  prior  to  the  passing  of  the  repealing  aoty  for  whkh 
no  aetion  was  then  pending. 

This  was  an  aetion  bronght  to  recover  the  price  of  goods  sapplied 
by  the  {daintiff  to  a  society  called  "  The  Kidgrore  Industrial  and 
Provident  Co-operative  Society,"  of  which  the  defendants  were  share- 
boldei^  and  committee-men,  Mella^  being  chairman  of  the  commit* 
tee.    Plea,  never  indebted. 

At  the  trial  before  Bramwell,  B.,  at  the  last  Spring  Assises  at  Ches* 
ter,  it  appeared  that  the  society  was  established  for  the  making  and 
selling  of  bread  and  other  articles,  of  daily  consamption  to  its  mem- 
bers and  others ;  that  it  was  duly  registered  on  the  26th  of  December, 
1862,  nnder  the  25  &  26  Yict  c  87;  that  there  were  two  tmstees; 
that  the  aflhirs  of  the  society  *were  nnder  the  management  of  ^^aa 
the  committee;  and  that  the  goods  in  qneetion  had  been  sapplied  ^ 
in  pursnance  of  a  resolution  of  the  committee,  to  which  all  the  defends 
ants  were  parties,  and  which  was  signed  by  the  defendant  Mellard  as 
chairman. 

The  goods  were  supplied  in  1861  and  down  to  July,  1862.  The 
25  &  26  Yict  c.  87,  passed  in  August^  1862 ;  and  this  action  was  com- 
ttienoed  in  January,  1868. 

On  the  part  of  the  defendants  it  was  eontended  that  the  16  k  16 
Yict.  c.  81  being  repealed  by  the  26  k  26  Yict  c.  87,  the  18  &  14 
Yict.  c  116,  s.  IS,  which  vested  the  property  of  the  society  in  Am 
trasteeSy  remained  in  force  as  to  provident  societies,  and  consequently 
that  the  action  riiould  have  been  brought  eith^  against  the  trustees 
or  against  the  society  in  its  corporate  character,  under  the  26  &  26 
Yict  c.  87,  s.  6,  which  enacts  that  ''the  certificate  of  registration  shall 
vest  in  the  soeiety  all  the  property  that  may  at  the  time  be  vested  iH 
any  person  in  trust  for  the  society :  and  all  legal  proceedings  ihm 
fending  by  or  against  any  silcfa  trustee  or  other  officer  on  account  of 
die  society,  may  be  prosecuted  by  «r  agmist  the  soeiety  in  its  regis- 
tered name,  without  abatement." 

The  cases  of  Butler  v.  Tannahill,  5  Bllis  &  B.  797  (E.  C.  L.  B.  voL 
85),  and  Myers  v.  Bawsoa,  6  Hurlst  k  N.  99,  were  referred  to. 

On  the  pari  of  the  plaintiff  it  was  insisted,  that,  by  the  repeal  of  ihe 
fbrmer  statutes  by  the  26  As  26  Yict  c  87,  All  members  of  thede  socie* 
ties  who  but  for  such  acts  wotfld  have  been  liable^  beoasie  liable  indi^ 
vidually  ibr  goods  ordertdd  hj^  them ;  and  thai  the  provision  in  th^ 
6th  section  of  that  aet  ibr  suing  the  soeleiy  in  its  corporate  name 
aerely  is  permissive,  m4  applies  duly  to  proeesdhM  then  pending* 

The  learned  judge  dineeted  a  ttottsuiti  reootfJug  w  plaintiff  leave 


(20  /    DEAN  i;.  MELLABD.    T.  V.  18C3. 

,  — -  ■  '» 

,ft^-|  to  move  to  enter  a  verdict  for  87Z.  65.  6rf.  *if  the  court  should  be 
-■  of  opinion  tljat  the  defendants  were  liable  personally ;  and  also 
on  the  ground  that  tliere  was  no  sufficient  evidence  that  there  were 
trustees, — neither  party  to  appeal  except  by  leave  of  the  Court  of 
Common  Pleas. 

M^Intyre,  accordingly,  obtained  a  rule  nisi,  on  the  ground  that 
*'  there  was  no  sufficient  evidence  of  the  appointment  of  trustees,  and 
that,  according  to  the  true  construction  of  the  statutes  relating  to 
friendly  and  provident  societies,  the  defendants  were  under  the  cir- 
cumstances personally  liable  to  the  plaintiff  for  the  goods  supplied." 
[WiLLES,  J.,  referred  to  Cockerell  v.  Aiicompte,  2  C.  B.  N.  S.  440 
(E.  C.  L.  R.  vol  89).] 

Morgan  Lloyd  and  Vaughan  Williams  now  showed  cause. — The 
plaintiff  was  properly  nonsuited.  But  for  the  25  &  26  Vict.  c.  87,  this 
action  would  clearly  have  been  misconceived;  for,  it  was  held  in 
Burton  v.  Tannahill,  5  Ellis  &  B.  797,  that  an  action  for  goods  supplied 
for  the  use  of  a  society  established  under  the  15  &  16  Vict.  c.  31, 
must,  by  the  17  &  18  Vict.  c.  25,  s.  1,  be  brought  against  the  registered 
officers  of  the  society  appointed  to  sue  and  be  sued,  where  there  are 
such  officers,  and.  it  cannot  be  maintained  against  an  individual 
member  of  the  society ;  and  in  Myers  v.  Rawson,  5  Hurlst.  k  N.  99, 
the  Court  of  Exchequer  pointed  out  that  the  only  mode  of  obtaining 
satisfaction  from  a  member  of  the  society  was  by  a  sci.  fa.  after  a 
judgment  obtained  against  the  registered  officers  or  trustees,  under 
the  17  &  18  Vict.  c.  25.  It  is  clear,  therefore,  that,  but  for  the  recent 
act,  this  action  should  have  been  brought  against  the  trustees.  The 
title  of  the  act  is,  ''An  act  to  consolidate  and  amend  the  laws  relating 
to  industrial  and  provident  societies."  It  recites  and  repeals  the  15  &  16 


^22] 


Vict.'c^Sl,  the  17  &  18  Vict.  c.  25,  and  the  19  &  20  Vict.  c.  40. 

By  a.  2  it  enacts  that  all  societies  tegistered  under  the  Industrial 
and  Provident  Societies  Act,  1852  (16  k  16  Vict.  c.  31),  shall  be  entitled 
to'  obtain  a  certificate  of  registration  on  application  to  the  registrar  of 
friendly  societies :  and  s.  6  enacts  that  "  the  certificate  of  registration 
shall  vest  in  the  society  all  the  property  that  may  at  the. time  be 
vested  in  any  person  in  trust  for  the  society ;  and  that  all  legal  pro- 
ceedings then  pending  by  or  against  any  such  trustee  or  other  officer 
on,  account  of  the  society  may  be  prosecuted  by  or  against  the  society- 
in  its  registered  name,  without  abatement.''  There  is  no  express 
provision  for  a  case .  like  the  present,  where  the  goods  are  supplied^ 
before  and  the  action  brought  after  the  passing  of  the  act  against: 
individual  members  of  the  society.  At  the  time  the  liability  was 
incurred,  it  was  not  oompetent  to  a  creditor  to  sue  the  individuals :  he 
must  have  proceeded  against  the  trustees.  But  it  is  said  that  the: 
rcipeal  of  the  former  acts  which  fnilde  it  necessary  to  sue  the  trustees, 
imposes  a  liability  upon  the  members  of  the  society  who  were  not 
Uable  at  the  time  the  cause  of  actioo  accrued.  [Wjlliaxs,  J. — ^It  will 
be  said  that  the  repeal  of  the  former  acts  leaves  the  members  as  thejf 
stQod  at  common  law.]  .  No  doubt :.but»  assuming  that  the  righi  ^f : 
aption  lagainst  the  trustees  is  taken  away  bjr  the  25  &  2^  Viot..o.  87,  what 
^  tb^re  to  impose  a  pco-aoiud  UabUitj  \ipo.n  the  individual  members  ?^ 
[WiLUAMS)  J.— It  Will  be  qaid  that,  it  is  a  qaeatipo  of  procedure,  nalt 
of  lia^bility.J    It; {js  sUVoiitt^  tfiat  it  iij  moi^e.itban  pjrQQedi;ire ::  it:.'ia 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)  22 

imposiDg  a  liability  which  did  not  exist  before, — which  cannot  be  done 
by  an  ex  post  facto  law,  unless  there  be  express  words.  [Keating,  J. 
— All  that  can  be  said,  is,  that  the  individual  members  were  formerly 
privileged  from  being  sued  by  some  acts  of  parliament  which  have 
*since  been  repealed.]  No  hardship  is  imposed  upon  the  plaintiff,  r^coo 
fur  the  funds  of  the  society  may  be  got  at  by  a  proceeding  in  ^ 
equity,  or  by  a  winding  up  under  s.  17. 

M  Intyre  and  Oriffits,  in  support  of  the  rule. — ^^It  is  an  improper  use 
of  term;?,  to  say  that  the  members  of  these  provident  societies  were 
not  personally  liable.  They  were  always  liaole ;  but  certain  acts  of » 
parliament  which  are  now  repealed,  regulated,  whilst  those  acts 
remained  in  force,  the  mode  of  proceeding  against  them.  This  is 
clear  from  the  judgment  of  Lora  Campbell  in  Burton  v.  Tannahill. 
The  former  statute  was  a  restriction  on  the  common-law  right  of 
suing :  that  restriction  is  now  removed.  If  the  plaintiff  were  left  tq 
his  remedy  under  the  winding  up  act,  his  recourse  against  the  persons 
who  contracted  with  him  might  be  altogether  gone.  In  Toutill  Vi 
Douglas,  8  Law  Times  N.  S.  426,  it  was  held  that  the  trustees  could 
not  be  sued  since  the  passing  of  the  25  &  26  Vict.  c.  87, — Cockburn, 
C.  J.,  saying :  *'  The  act  of  1852  and  the  subsequent  acts  having  been 
repealed  by  the  25  &  26  Vict,  which  contemplated  a  new  status  foi* 
these  societies  by  making  them  incorporated,  the  rights  and  liabilities 
of  the  societies  under  the  repealed  acta  exist  only  for  the  purpose  of 
registration  under  the  new  act.  It  is  impossible  to  say  that  the 
repealed  acts  can  any  longer  exist  for  the  purpose  of  enabling  them; 
10  sue  or  be  sued  in  the  names  of  their  officers."  The  plaintiff', 
therefore,  will  be  without  remedy,  unless  he  can  maintain  this  action. 

Williams,  J. — I  feel  considerable  difficulty  in  dealing  with  this 
statute,  because  I  am  confident  that  the  consequences  which  have 
resulted  were  never  contemplated  by  the  legislature.  But,  lookii^g 
at  its  terms,  *and  at  the  decisions  which  have  taken  place  as  r^^A 
well  before  as  since  its  passing,  I  think  the  rule  to  enter  a  ver-  ^ 
diet  for  the  plaintiff  for  the  sum  claimed  must  be  made  absolute.  In 
order  to  arrive  at  a  satisfactory  conclusion,  it  is  necessary  to  see  how 
the  law  stood  before  the  passing  of  the  25  &  26  Yict.  c.  87|  upoii 
which  the  question  arises.  Creditors  were  then  compelled  to  proceed 
in  the  first  instance  by  action  against  the  trustees  or  other  public 
officers;  but  the  individual  members  might  ultimately  have  been 
made  liable  by  proceeding  against  them  by  scire  facias,  if  the  corpo- 
rate fund  were  insufficient  to  satisfy  the  judgment.(a)  It  appears  to 
me  that  the  legislature  did  not  mean  to  interfere  further  with  the 
common-law  liability  of  the  members  of.  the  society  in  respect  of 
contracts  made  by  the  trustees.  Then  comes  the  statute  25  &  26  Yict. 
c.  87,  the  effect  of  which  is  to  repeal  the  provisions  of  the  former 
statutes  which  compelled  the  creditor  to  take  the  circuitous  course  I 
have  pointed  out,  and  leave  it  open  to  him  to  proceed  against  indi- 
vidoat  members  as  he  might  have  done  if  those  statutes  had  not 

(a)  The  11th  •eeiion  of  the  15  k  16  Viet  o.  81  enacted  that  "nothing  in  thia  or  the  aaid 
recited  aet  (the  Friendlj  Societies  Act,  13  4  14  Vict  o.  115)  iball  be  eonatrued  to  restrict  in 
any  wise  the  liability  of  the  members  of  any  society  established  under  or  by  Tirtne  of  this  act, 
or  elaiming  the  benefit  thereof,  to  the  lawfal  debts  or  engagements  of  snch  society :  Proyidisd 
always,  that  no  person  shall  be  liable  for  the  debts  or  engagimenta  of  any  snoh  soeiety  tiler 
the  expiration  of  two  years  from  his  ceasing  (o  be  a  member  of  the  same." 


24  DEAN  V.  MELLARD.    T.  V.  1863. 

Eassed.  The  result  is,  that  each  individaal  member  is  liable,  and  has 
is  remedy  over  against  the  others  for  oontribution.  It  has  been 
suggested,  on  the  part  of  the  defendants,  that  the  statute  26  k  26 
*251  ^'^^'  ^'  ^^  ^^^  ^^  intend  to  cast  upon  individual  members  a  lia- 
J  bility  which  did  not  exist  before,  viz.  of  being  sued  ♦in  the 
first  instance.  That  argument  would  have  been  admissible  if  the 
legislature,  instead  of  enacting,  as  they  have  done,  in  s.  6,  that 
"the  certificate  of  registration  shall  vest  in  the  society  all  the 
property  that  may  at  any  time  be  vested  in  any  person  in  trust  for 
the  society ;  and  all  legal  proceedings  then  pending  by  or  against  any 
such  trustee  or  other  officer  on  account  of  the  society,  may  be  prose- 
cuted by  or  against  the  society  in  its  registered  name,  without  abate- 
ment,"— had  gone  on  to  say  that  *'  all  claims  and  rights  of  action 
existing  at  the  time  of  the  passing  of  the  act "  might  be  so  prosecuted. 
But  they  have  not  said  so:  they  have  confined  the  indulgence  to 
actions  pending  at  the  time  of  the  obtaining  of  the  certificate  of  regis- 
tration. That  must  mean  actions  commenced  before  the  passing  of 
the  25  &  26  Vict  c.  87,  because  none  could  be  commenced  after  against 
any  but  existing  members.  But  then  it  has  been  contended  that  the 
trustees  must  still  remain  liable  to  be  sued  in  respect  of  claims  which 
were  existing  before  the  act  came  into  operation.  The  case  of  Toutill 
V.  Douglas,  however,  shows  that  no  action  for  such  a  claim  can  be 
maintained  against  the  trustees.  Although  it  does  not  appear  from 
the  short  statement  of  the  declaration  in  the  report  of  that  case  that 
the  cause  of  action  was  alleged  to  have  taken  place  before  the  passing 
of  the  25  k  26  Vict.  c.  86,  yet  the  judgment  of  Cockburn,  C.  J., 
applies  equally  whether  the  cause  of  action  accrued  before  or  after 
that  act  passed,  inasmuch  as  the  non-liability  of  the  trustees  was  held 
to  be  the  necessary  consequence  of  the  repeal  of  the  former  statutes. 
We  cannot,  therefore,  escape  the  consequence,  that  no  action  will  lie 
against  the  trustees:  the  ordinary  result,  then,  must  follow,  viz.  that 
we  must  look  at  the  repealed  statutes  as  if  they  had  never  existed, 
and  therefore  the  creditor  is  remitted  to  his  common-law  rights. 
♦261  *W'iLLBS,  J. — I  am  of  the  same  opinion.  I  much  regret  being 
-'  compelled  to  eome  to  this  conclusion,  because  it  exposes  indi- 
viduals to  liability  to  an  action  which  they  might  fairly  have  supposed 
eould  only  be  brought  against  the  general  body  of  the  society.  But 
there  can  be  no  doubt,  when  the  acts  of  parliament  and  the  clecisions 
are  looked  at,  that  the  direction  to  proceed  against  the  trustees  was 
merely  providing  a  mode  of  procedure  which  was  equally  for  the  con- 
venience of  the  society  and  of  its  creditors,  and  not  to  take  away  the 
liability  of  the  members.  But,  looking  at  the  25  &  26  Vict.  c.  87,  and 
seeing  that  it  applies  only  to  proceedings  pending  at  the  time  of  its 
passing,  I  regret  that  we  have  no  alternative  but  to  say  that  the  inter- 
val, as  to  debts  or  claims  which  arose  prior  to  registration  under  that 
act,  remains  unprovided  for. 

KsATiNa,  J. — I  am  of  the  same  opinion.  The  efieot  of  the  statutes 
for  the  regulation  of  industrial  and  provident  societies  was,  to  compel 
the  creditor,  for  the  mutual  convenience  of  all  parties,  to  have  recourse 
to  the  funds  of  the  society,  by  suing  the  trustees  before  proceeding 
(by  scire  facias)  against  the  individual  members.  It  was  merely 
opposing  an  obstacle  to  the  procedure,  and  was  not  intended  to  afiect 


COMMON  BBNCH  REPORTS.    (15  J.  SCOTT.    N.  S.)         26 

the  ultimate  liability  of  the  members  c^  the  societj.  The  effect  of  tbt 
repeal  of  thoee  statutes  was,  to  remoye  thoee  obstacles,  and  to  restore 
the  liability  of  the  members  to  what  it  was  at  common  law.  Sharing 
io  the  regret  expressed  by  my  Brother  Willes,  I  reluctantly  come  to 
the  conclusion  that  the  6th  section  of  the  26  &  26  Vict.  c.  87  does  not 
include  causes  of  action  existing  at  the  time  of  its  passing. 

Williams,  J. — Although  registered  under  the  25  &  26  Vict.,  it  is 
clear  that  the  society  could  not  have  been  "^sUed  here  in  it&  oor-   r^^^ 
porate  capacity,  because  the  contract  was  entered  into  before  the  ^ 
society  had  any  legal  corporate  existence. 

Rule  absolute  accordingly. 

Vaughan  Williams^  for  the  defendants,  asked  leare  to  appeal,  sug- 
gesting that  the  matter  was  of  considerable  importance  to  these 
societies. 

M^Intyre  opposed  the  application,  on  the  ground  that  the  amount 
was  small  and  the  decision  unanimous. 

Williams,  J. — We  are  at  all  times  anxious  that  our  decisions  should 
be  subject  to  review.  Bat  I  cannot  say  that  this  is  a  case  in  which  we 
ought  to  allow  an  appeal,  especially  as  the  amount  in  question  is  so 
▼ery  small.  Leave  to  appeal  refused. 


BARKER  V.  HIGHLBY.    July  6. 

Tht  tbtp'f  hnaband,  or  mM»giDg  owner,  la  m  agent  ftppolatDd  by  the  other  ownen  to  do 
wbek  is  neoatsary  to  enable  tbe  tbip  to  proaeente  her  Toyage  and  earn  freight 

Where,  therefore,  the  ihip's  hnaband  and  nuinaging  owner  oaoaed  a  bail-bond  to  be  gWen  in 
the  Admiralty  Court,  in  the  namea  of  hii  eo-owner  and  himself,  in  a  snit  for  a  eolllsion,  and 
the  rait  terminated  in  favour  of  the  plaintiffii  and  the  baU  were  ealled  upon  to  pay  dam* 
agM,  interest,  and  eosts  :~Held,  that  the  ee-owaer  was  retponalble  to|  the  bail  for  the  money 


This  was  an  action  upon  a  bail-bond  given  in  the  Admiralty  Court 
in  order  to  obtain  the  release  of  a  vessel  from  arrest  in  a  suit  there  for 
collision. 

The  first  count  of  the  declaration  was  founded  upon  an  implied 
promise  by  the  defendant  to  indemnify  the  ^plaintiff  from  loss  r^og 
by  reason  of  his  having,  as  surety  for  the  defendant  and  one  ^ 
Zachariah  Charles  Pearson,  executed  a  bail-bond  to  secure  the  payment 
(to  the  extent  of  the  bond)  of  what  might  be  adjudged  against  Pear- 
son and  the  defendant,  as  owners  of  the  screw  steamship  Wesley,  in  a 
suit  instituted  against  them  in  that  court  by  the  owners  of  the  ship 
Antelope. 

There  were  also  counts  for  money  paid  and  for  money  found  due 
upon  accounts  stated. 

The  defendant  pleaded  never  indebted,  and  to  the  first  count  a  denial 
of  tbe  promise  therein  alleged. 

The  cause  was  tried  before  Byles,  J.,  at  the  sittings  in  London  after 
last  Hilary  Term.  The  facts  which  appeared  in  evidence  were  as 
follows : — The  defendant  was  a  master  mariner  in  the  service  of  Pear* 
son,  then  a  large  ship-owner  at  Hull,  and  was  owner  of  two  64th  shares 
of  tbe  Wesley,  Pearson  being  owner  of  the  other  sixty- two  shares, 
and  acting  as  the  managing  owner  and  ship's  husband.  On  the  I7th 
of  September,  I860,  a  collision  took  place  between  the  Wesley  and 


28  BARKER  D/HIGHLEY.    T.  V.  1863. 

the  Antelope,  and  the  former  vessel  was  arrested  by  virtue  of  process, 
out  of  the  Admiralty  Court  at  the  suit  of  the  owners  of  the  Antelope. 
Highley  being  abroad,  Pearson  instructed  Hargreaves,  his  broker,  to 
take  the  necessary  steps;  and  accordingly  Hargreaves,  in  order  to 
Qbtain  the  ship's  release,  procured  Barker  (the  plaintiff')  and  one  Cole- 
man, to  execute  a  bail  bond  as  sureties  for  the  owners  for  such  sum. 
i^ot  exceeding  500Q/.,  as  might  b^  awarded  against  them  in  the  Admi- 
r.alty  suit,  with  costs.  Upon  the  bond  being  given  the  ship  was 
released,  and  afterwards  she  proceeded  upon  a  voyage  and  earned 
freight,  of  which  the  defendant  received  his  proportion;  and  ulti^ 
mately,  the  vessel  being  lost,  the  defendant  received  300Z.  for  his  share 
of  the  insurance-money. 

*291  Judgment  having  been  allowed  to.  go  against  the  *owners.of 
^  the  Wesley  in  the  Admiralty  Court,  damages,  interest,  and 
costs  were  awarded  against  them  to  the  amount  of  211/.  45.,  and  a 
monition  was  served  upon  the  bail  requiring  them  to  pay  each  a 
moiety  of  that  sum.  The  plaintiff  having  paid  his  moiety,  and  Pear- 
son having  become  bankrupt,  the  plaintiff  now  sued  the  defendant. 
,  Hargreaves,  the  broker,  who  was  called  as  a  witness,  stated  that  he 
wa,s  employed  solely  by.  Pearson,  and  that  neither  he  nor  Barker 
knew  anything  of  Highley  or  had  any  communication  with  him, 

On  the  part  of  the  defendant  it  was  submitted  that  Pearson  had  no 
power  to  bind  his  co-Dwner  by  entering  into  such  an  engagement 
without  his  consent  or  knowledge. 

The  learned  judge  overruled  the  objection,  and  a  verdict  was  entered 
for  the  plaintiff  for  105t  125.;  leave  being  reserved  to  the  defendant 
to  move  to  enter  a  nonsuit  or  a  verdict. 

Denman^  Q.  C,  in  Easter  Term  last,  obtained  a  rule  nisi,  on  the 
ground  that,  under  the  circumstances  proved  at  the  trial,  the  plaintiff 
was  not  entitled  to  recover,  and  that  neither  Pearson  nor  Hargcaves* 
had  authority  to  bind  the  defendant  so  as  to  make  him  liable  for  the 
expenses  paid  by  the  plaintiff  as  surety.  He  submitted,  that,  inas- 
much as  the  defendant  could  only  have  been  made  liable  in  the 
Admiralty  Court  to  the  extent  of  the  value  of  his  interest  in  the  ship, 
his  co-owner  could  have  no  implied  authority  to  bind  him  for  dama- 
ges and  costs  which  might  far  exceed  that  value:  and  he  referred  to 
Sims  V.  Brittain,  4  B.  &  Ad.  375  (E.  C.  L.  R.  vol.  24),  1  N.  &  M.  694, 
Myers  v.  Willis,  17  C.  "B.  77  (E.  C.  L.  R.  vol.  84),  18  C.  B.  886  (E.  C. 
L.  R.  vol.  86),  Brodie  v.  Howard,  17  C.  B.  109,  Hackwood  v.  Lyall,  17 
C.  B.  124,  Mitcheson  v.  Oliver,  6  Ellis  &  B.  419  (E.  C.  L.  R.  vol. 
85),  and  Whitwell  v.  Perrin,  4  C.  B.  N.  S.  412  (E.  C.  L.  R.  vol.  93). 


» 


30] 


^Montague  Smithy  Q.  C,  and  Hannen,  showed  cause. — The 


question  is,  what  is  the  extent  of  the  authority  of  a  part  owner 
of  a  ship,  who  is  also  managing  owner  and  ship's  husband.  That 
question  must  be  decided  by  reference  to  general  principles  and  to 
analogous  cases.  That  which  it  is  necessary  to  do  for  the  joint  benefit 
must  clearly  be  within  the  power  and  authority  of  the  managing  owner : 
and  here  it  was  necessary,  in  order  to  enable  the  ship  to  earn  freight, 
that  she  should  be  released ;  she  was  released  by  means  of  this  bond,  and 
she  earned  freight,  his  proportion  of  which  the  defendant  received.  The 
authority  is  thus  stated  in  Abbott  on  Shipping,  8ih  edit.  105,  10th 
edit.  72, — ^^''It  is  usual  fpr  the  several  part  owners  to  appoint  a  person, 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)         30 

frequently  one  of  their  own  number,  to  be  the  manager  of  their  joint 
concern,  their  general  agent  in  the  use  and  employment  of  the  vessel, 
under  the  name  of  the  ship's  husband.    His  duties  and  powers  as 
sach  are  often  defined  and  limited  by  the  terms  of  a  special  agreement 
for  that  purpose  between  him  and  his  employers  or  co-owners.   Where 
no  such  agreement  has  been  made,  he  is  to  exercise  an   impartial 
judgment  in  the  employment  of  tradesmen  and  the  appointment  of 
officers,  and  be  careful  that  his  choice  in  the  selection  of  a  master  be 
not  biassed  by  any  private  pecuniary  transaction.     He  is  to  see  that 
the  ship  is  properly  repaired,(a)  equipped,  and  manned,-^to  procure 
freights  or  charter-parties, — to  preserve  the  ship's  papers, — to  make 
the  necessary  entries, — adjust  freight  and  averages, — disburse  and 
receive  moneys,  and  keep  and  make  up  the  accounts  as  between  all 
parties  interested.     His  acts  for  these  purposes  are  considered  to  be 
the  acts  of  all  the  part  owners,  who  are  liable  on  all  contracts  entered 
into  by  him  for  the  conduct  of  their  *common  concern, — the   p^gi 
employment  of  the  ship."     '*  But  one  part  owner,  though  he  be  *- 
also  managing  owner,  cannot,  by  ordering  an  insurance  of  a  ship 
without  authority  from  another,  charge  the  other  with  any  part  of  the 
premium,  unless  the  other  afterwards  assent  to  the  insurance,  because 
this  is  no  part  of  the  joint  concern  ;  a  share  in  a  ship  being  the  distinct 
property  of  each  individual  part  owner,  whose  own  affair  it  is  to  pro- 
tect it  by  insurance.    So,  one  part  owner,  although  he  be  the  husband, 
cannot  as  such  pledge  the  other  to  the  expenses  of  a  lawsuit."     The 
rule  is  similarly  stated  in  Story  on  Agency,  §§  40,  41,  and  in  Story 
on  Partnership,  pp.  581,  et  seq.    In  Bell's  Principles  of  the  Law  of 
Scotland,  p.  449,  it  is  said :  "  The  ship's  husband  is  the  agent  or  com- 
missioner for  the  owners.     He  may  be  a  part  owner  or  a  stranger. 
His  powers  are  by  mandate  or  written  commission' by  the  owners,  or 
by  verbal  appointment ;  the  latter  chiefly  where  he  is  also  part  owner. 
His  duties  are, — 1.  To  arrange  everything  for  the  outfit  and  repair  of 
the  ship, — stores,   repairs,  furnishings;   to  enter   into  contracts  of 
affreightment:  to  superintend  the  papers  of  the  ship, — 2.  His  powers 
do  not  extend  to  the  borrowing  of  money ;  but  he  may  grant  bills  for 
furnishings,  stores,  repairs,  and   the  accessary  engagements,  which 
will  bind  the  owners,  although  he  may  have  received  money  where- 
with to  pay  them, — 3.  He  may  receive  the  freight ;  but  is  not  entitled 
to  take  bills  instead  of  it,  giving  up  the  lien  by  which  it  is  secured, — 
4.  He  has  no  power  to  insure  for  the  owner's  interest  without  special 
authority, — 5.  He  cannot  give  authority  to  a  law  agent  that  will  bind 
his  owners  for  expenses  of  a  lawsuit, — 6.  He  cannot  delegate  his 
authority."     If  Pearson  had  paid  this  money,  he  might  have  charged 
it  in  the  accounts  of  the  ship.     In  Whitwell  v.  Perrin,  4  C.  B.  N.  S, 
412  (E.  C.  L.  R.  vol.  93),  necessaries  were  *furnished  to  a  ship   r^go 
on  the  order  qf  the  ship's  husband  (himself  a  part  owner),  by   ^ 
whom  alone  the  ship  was  managed:  and  it  was  held  that  the  co- 
owners  were  liable,  although  part  of  the  supplies  had  been  paid  for 
by  bills  drawn  by  .the  ship's  husband  upon  the  brokers  of  the  ship, 
and,  on  the  bankruptcy  of  the  latter,  the  plaintiff  had  proved  against 
ibeir  estate  fur  the  balance.     [Williams,  J.,  referred  to  Preston  i^. 
Tamplin,  2  Hurlst.  &  N.  684.]    In  Rich  v.  Coe,  Oowp.  636,  639^ 

(a)  Bm  WiUiami  v.  AUiap,  10  C.  B.  N.  S.  417  (E.  C.  L.  R.  toI.  100). 


BARKER  V.  HIGHLET.    T.  V.  1863. 


Lord  Mansfield  said :  "  Whoever  supplies  a  ship  with  necessaries  has 
a  treble  security, — 1.  The  person  of  the  master, — 2.  The  specific  ship, 
-^.  The  personal  securitj  of  the  owners,  whether  they  know  of  the 
supply  or  not.  The  master  is  personally  liable,  as  making  the  con- 
tract The  owners  are  liable  in  consequence  of  the  master's  act, 
because  they  choose  him  :  they  run  the  risk,  and  they  say  whom  they 
will  trust  with  the  appointment  and  office  of  master."  Here,  the 
defendant  trusted  Pearson  to  do  all  that  was  necessary  for  the  employ- 
ment of  the  ship:  and  the  employment  of  Hargreaves  by  Peairson  was 
no  delegation  of  the  authority  intrusted  to  him. 

Denman,  Q.  C,  and  Uihvard^  in  support  of  the  rule. — Whatever 
might  have  been  the  general  authority  of  Pearson  as  ship's  husband, 
he  clearly  had  no  right  to  assume  that  the  defendant  would  intervene 
in  the  suit  in  the  Admiralty  Oourt ;  and  there  was  no  necessity  for 
making  him  intervene  so  as  to  become  liable  for  the  damages  and 
costs.  A  part  owner  of  a  ship  is  not  necessarily  a  partner :  Helme  r. 
Smith,  7  Bing.  709  (E.  C.  L.  R.  vol.  20),  5  M.  &.  P.  774.  As 
between  the  part  owners,  each  is  only  liable  to  the  extent  of  his  own 
interest  in  the  ship.  His  liability  in  cases  of  this  sort  is  similarly 
limited  by  the  604th  section  of  the  Merchant  Shipping  Act,  17  k  18 
«ooi  ^i<3t.  c.  104.  That  section  is  ^substantially  a  re-enactment  of 
•'  the  1st  section  of  the  63  G.  8,  c.  169,  which  was  under  discus- 
sion in  Ex  parte  Rayne,  1  Q.  B.  982  (E.  G.  L.  R.  vol.  41).  This  clearly 
is  not  an  ordinary  incident  to  the  authority  of  a  ship's  husband :  it 
was  just  as  much  out  of  the  course  of  the  ordinary  duty  of  a  ship's 
husl^nd  as  was  held  the  instituting  a  suit  for  salvage  in  Campbell  v. 
Stein,  6  Dow  116.  A  ship's  husband  has  no  power  to  insure  unless 
by  the  authority  of  his  co-owner ;  French  v.  Backhouse,  6  Burr.  2727 ; 
or  for  repairs  which  are  not  necessary:  Chappell  v.  Bray,  S  Law  J. 
Ezch.  24.  So,  one  partner  has  no  authority  to  bind  his  copartner  by 
a  reference  to  arbitration  (Hatton  v.  Ro^le,  8  Hurlst.  k  N.  600),  or 
by  consenting  to  an  order  for  judgment  in  an  action  against  himself 
and  his  copartner :  Hambridge  v.  De  la  Grou^,  3  G.  B.  742  (E.  G.  L. 
R.  vol.  64).  [Williams,  J. — Suppose  a  ship  bound  on  a  voyage  under 
a  heavy  penalty  comes  into  collision  with  another  and  slightly  damages 
her,  and,  the  ship's  husband  declining  to  give  bail,  the  voyage  is  lost, 
-^would  not  his  co-owners  have  a  right  to  call  upon  him  for  compen- 
sation 7]  It  is  submitted  that  they  would  not.  That  which  was  aone 
here  was  clearl v  beyond  the  scope  of  a  co-owner's  power  and  authority. 
One  of  several  partners  cannot  bind  his  copartners,  without  their 
consent,  by  giving  a  guarantee,  or  a  cognovit,  or  by  entering  an 
appearance  to  an  action.  [Williams,  J. — ^This  is  put  upon  the  ground 
of  necessity.]  Our.  adv.  vuk. 

Williams,  J.,  now  delivered  .the  judgment  of  the  court  :(a) — The 
defendant  in  this  action  was  part  owuer  of  a  vessel  which  had  been 
arrested  in  the  Admiralty  Gourt,  in  a  suit  for  collision.  The  defend* 
ant  held  two  sixty-fourth  shares  only ;  the  other  co-owner  held  the 
*S41  *^^™^^°^"8  sixty-two  sixty-fourth  shares,  and  acted  as  ship's 
J  husband  and  managing  owner.  The  latter,  in  order  to  obtain 
tbe  release  of  the  ship,  procured  the  plaintiff  and  another  person  to 
become  bail  for  the  ship  in  the  Admiralty  Gourt,  and  the  ship  was 

(a)  The  OAM  wti  arguod  bofora  ErU,  C.  J.,  WiUUmt,  J.,  WUiw,  J.,  aad  Bjlei,  J. 


COMMON  BBNCa  BEPORTS.    (16  J.  SCOTT.    N.S.)         34 

therenpoiji  released.  The  suit  terminated  in  favour  of  the  owner  of 
the  injured  vessel.  The  mana^inff  owner  of  the  defendant's  vessel 
became  bankrupt,  and  the  ship  itself  was  afterwards  lost  The  bail 
having  each  paid  their  proper  share  of  the  money  due  on  the  bail- 
bond,  the  plaintiff  as  one  of  them  sued  the  defendant  in  this  action  to 
recover  his  proportion  of  the  monej  so  paid. 

At  the  trial  before  Byles,  J.,  the  plaintiff  obtained  a  verdict ;  but 
leave  was  given  to  the  defendant  to  move  to  enter  a  nonsuit. 

The  ship's  husband,  or  managing  owner,  is  an  agent  appointed  by 
the  other  owners  to  do  what 'is  necessary  to  enable  the  ship  to  prose- 
cute her  voyage  Und  earn  freight  In  this  case  it  was  absolutely  neces- 
sary to  release  the  ship  from  the  Admiralty  process, — as  necessary  as 
it  would  have  been  to  employ  salvors,  had  the  vessel  taken  the  ground 
and  been  in  danger  of  destruction ;  in  whidi  case  the  salvors,  in  addi- 
tion to  the  security  afforded  by  their  maritime  lien,  might  have 
brought  an  action  against  the  owners :  Newman  v.  Walters,  8  B.  & 
P.  812. 

We  think  the  managing  owner  was  not  bound  to  deposit  money  out 
of  his  own  pocket,  or  to  mortgage  his  own  shares,  or  to  hypothecate 
the  ship ;  but  that  he  might  do  what  was  necessary  according  to  the 
rales  of  the  Admiralty  Ck>urt.  Those  rules  enabled  him  to  obtain  a 
release  of  the  ship  by  merdy  procuring  bail  for  damages  and  costs. 

The  hardship  on  the  present  defendant  is  undoubtedly  great ;  but 
that  arises  from  the  facts  that  he  was  owner  of  so  small  a  portion  of 
the  ship,  and  that  he  has  lost  his  remedy  against  the  co«owner  by  that 
^oo-owner's  bankruptcy,  and  against  the  ship  by  its  subsequent  ^^^^ 

We  are  therefore  of  opinion  that  the  rule  to  enter  a  nonsuit  should 
be  discharged.  Bule  discharged. 


KIDNER  V.  KEITH.    June  19. 

▲  d«ed  (whioli  by  MTaogcntnl  wm  Io  b#  ezaontoi  in  daplioata,  od«  to  be  pnpftred  by  tMh 
patty  sad  to  be  interchanged  between  tbem)  was  eieonted  by  tbf  grantee,  bnt  not  atteited, 
and  was  by  him  ieat  to  the  solicitor  of  the  grantors  to  procure  their  execution ;  and  they 
aeoordingly  signed,  sealed,  and  delirered  It : — Held,  that  this  was  a  eonplete  dellTery,  whereby 
the  estate  passed ;  and  that  the  ahere  arraogtPMt  did  not  ifndar  the  deed  aa  eserow  vntil  the 
dnplieales  were  interchanged* 

This  was  an  action  of  replevin.  The  defendant  avowed  that  one 
William  Pratt,  during  all  the  time  for  which  the  rent  thereinafter 
mentioned  to  be  distrained  for  accrued  due,  and  thence  until  and  at 
the  time  of  the  alleged  taking  of  the  said  goods,  held  the  said  dwell 
ing-house  and  premises  in  which,  &c.,  as  tenant  thereof  to  the  defend 
ant  under  a  demise  thereof  at  the  yearly  rent  of  761.  payable  quar- 
terly,  on,  &c.,  in  every  year,  by  even  and  equal  portions ;  and  because 
166/L  16b.  of  the  said  rent  at  the  time  of  the  alleged  tiding  was  due 
and  in  arrear  from  the  said  William  Pratt  to  the  defendant,  he  the 
defendant  well  avowed  the  taking,  &a  Plea,  non  tenuit.  Issue 
thereon. 

The  cause  was  tried  before  Wightman,  J.,  at  the  last  Spring  Assizes 
at  Kingston,  when  the  learned  judge  directed  a  verdict  to  b^  entered 
for  the  defendant,  with  liberty  to  the  plaintiff  to  move  to  enter  a  ver** 


m  KIDNER  r.  KEITH.    T.  V.  1863. 

diet  for  him, — the  court  to  draw  any  inference  of  fact  from  the  evi- 
dence, which  was  in  substance  as  follows: — 

By  indenture  of  lease  of  the  22d  of  April,  1816,  between  John 
Young  of  the  one  part  and  James  Bush  of  the  other  part,  the  premises 
in  question  were  demised  to  Bush  for  fifty-seven  years  and  a  half  from 
the  25th  of  March  then  last  preceding,  subject  to  the  rents  and  covcv 
Slants  therein  mentioned.  By  divers  rhesne  assignments  the  premises 
♦361  ^^^  become  and  were,  on  and  prior  *to  the  19th  of  July,  1830, 
-^  vested  in  one  Alexander  Macdougall  for  the  residue  of  the  term. 

By  indenture  of  assignment  of  the  19th  of  July,  1880,  between 
Macdougall  of  the  one  part  and  Henry  John  Keith  (the  defendant)  of 
the  other  part,  Macdougall,  in  consideration  of  4252.  paid  to  him  by 
n.  J.  Keith,  assigned  to  him  the  premises  in  question  for  the  residue 
of  the  term,  subject  to  the  rent  and  covenants  contained  in  the  inden- 
ture of  lease  of  the  22d  of  April,  1816. 

By  indenture  of  settlement  of  the  28tb  of  February,  1831,  between 
H.  J.  Keith  of  the  first  part,  Mary  Keith  (the  mother  of  H.  J.  Keith) 
of  the  second  part,  and  G.  C.  Keith,  Mary  Eliza  Brooks  (then  M.  E. 
Snook,  formerly  M.  E.  Keith),  and  H.  J.  Keith  of  the  third  part, — 
after  reciting,  amongst  other  things,  that  the  said  sum  of  4252.,  the 
purchase-money  for  the  said  premises  expressed  to  be  paid  by  H.  J. 
Keith,  was  the  proper  money  of  Mary  Keith,  and  that  in  the  purchase 
thereof  he  was  acting  aa  a  trustee,  and  that  Mary  Keith  was  desirous 
that  the  premises  should  be  held  upon  the  trusts  therein  mentioned, — 
it  was  covenanted,  declared,  and  agreed  that  he  (R.  J.  Keith),  his  execu- 
tors, administrators,  and  assigns,  should  stand  possessed  of  the  pre- 
mises so  vested  in  him  as  aforesaid,  upon  trust  to  pay  the  rents  and 
profits  thereof  to  Mary  Keith  during  her  life,  for  her  own  separate 
use,  and,  after  her  decease,  that  the  premises  should  be  h^ld  upon  trust 
in  equal  shares  for  the  said  G.  G.  Keith,  M.  E.  Snook,  and  H.  J.  Keith. 

This  deed  of  the  28th  of  February,  1881,  was  a  family  arrange- 
ment: but  the  recital  therein  that  the  4252.  was  the  proper  money  of 
Mary  Keith  was  erroneous;  it  having  in  fact  been  part  of  the  estate 
of  John  Keith,  her  late  husband,  who  had  died  intestate,  leaving  Marv 
^oyi   Keith,- his  widow,  and  H.  J.  Keith,  *G.  0.  Keith,  and  M.  E. 

-'  Snook,  his  only  children,  and  sole  next  of  kin. 
'  In  1854,  Mary  Keith,  wishing  to  get  rid  of  the  deed  of  the  28th  of 
February,  1831,  and  to  have  the  premises  in  her  own  power,  applied 
to  H.  J.  Keith  to  assign  them  to  ner  absolutely,  which  he  agreed  to 
do ;  and  an  indenture  was  accordingly  prepared  for  that  purpose  and 
endorsed  on  the  indenture  of  assignment  on  the  19th  of  July,  1830,^ 
assigning  the  same  to  her  absolutely.  This  indenture'was  signed  by* 
H.  J.  Keith,  but  was  neither  dated,  attested,  or  delivered,  the  solicitor 
to  Mary  Keith,  who  had  prepared  the  deed  in  ignorance  of  the  prior 
settlement,  at  the  moment  of  the  execution^  hearing  of  the  prior  trust, 
told  him  that  it  would  therefore  be  valueless.  Mary  Keith,  however, 
received  the  rents  down  to  the  time  of  her  death,  which  took  place  on 
the  8th  of  December,  1855.  She  bad  previously  made  a  will,  where- 
by she  bequeathed  all  her  property  and  effects  to  Joseph  Partridge,. 
William  Dunk,  and  M.  £.  Brooks,  upon  trust  to  divide  the  rents  be- 
tween H.  J.  Keith  and  M.  £.  Brooks  (G.  C.  Keith  having  previously 
died)  during  their  lives,  and  upon  trust  as  to  the  corpus  for  the  survi- 


COMMON  BENCH  REPORTS.    (13  J.  SCOTT.    N.  S.)  87 

tor.  The  will  was  proved  by  M.  E.  Brooks  and  Partridge,  Dunk 
having  resigned. 

Prior  to  her  death,  viz.,  in  January,  1855,  Mary  Keith  granted  a 
lease  of  the  premises  for  eighteen  years  to  William  Pratt,  under 
whom  the  plaintiff  claimed.  The  validity  of  this  lease  was  contested 
in  an  action  of  ejectment  between  H.  J.  Keith  and  William  Pratt) 
which  was  tried  at  the  Summer  Assizes  for  Surrey  in  1861,  and  its 
validity  established  by  the  decision  of  this  court  upon  a  rule  to  set 
aside  the  nonsuit. 

In  1858,  an  arrangement  was  entered  into  by  the  members  of  the 
family,  whereby  the  executrix  and  executor  of  Mary  Keith  were  to 
assign  over  tlie  lease  granted  in  January,  1855,  to  the  defendant  as  a 
trustee  for  the  different  members  of  the  family  in  certain  *pro-   r^og 

Sirtions ;  and  a  deed  of  mutual  release  and  assignment,  dated  ^ 
ay  the  5th,  1858,  was  prepared,  whereby  the  lease  was  reassigned 
to  the  defendant,  subject  to  Pratt's  underlease.    This  deed  also  con- 
tained covenants  by  the  defendant  to  indemnify  the  grantors  from  the 
future  performance  of  the  covenants  of  the  lease. 

In  1859,  a  bill  was  filed  by  the  widow  and  administratrix  of  G.  G. 
Keith  (and  her  then  husband  J.  G.  Hairby),  claiming  a  third  of  the 
rents  of  the  premises  in  question,  and  praying  that  the  deed  of  185-1 
might  be  declared  invalid  ;  and  b^  a  decree  dated  the  5th  of  Novem- 
ber,  1860,  this  deed  was  declared  inoperative,  and  it  was  also  declared 
that  H.  J.  Keith  was  a  trustee  of  the  property  under  the  deed  of  the 
28tb  of  February,  1831.  No  notice,  however,  was  taken  of  the  lease 
of  January,  1855. 

The  main  question  between  the  parties  was,  whether  the  deed  of 
the  5th  of  May,  1858,  had  been  delivered  as  a  perfect  deed,  or  only  as 
an  escrow  ;  and  this  depended  upon  the  evidence  of  Mr.  Withall,  who 
acted  as  the  solicitor  of  Mrs.  Keith's  executors  on  the  occasion. 

Upon  his  examination  in  chief,  Mr.  Withall  stated  that  the  deed 
was  duly  signed,  sealed,  and  delivered  by  Mr.  and  Mrs.  Brooks  and 
by  Partridge,  the  co-executor,  in  his  presence ;  that  the  deed  had  bqen 
sent  to  him  for  execution  by  his  clients,  signed  by  the  defendant,  but 
unattested.  He  also  stated  that  the  executors  had  received  from  Pratt 
rent  accruing  after  Mary  Keith's  death,  and  that  six  months  after  he 
paid  88/.  Is.  Id.  to  the  defendant. 

On  cross-examination  he  said :  *'  The  deed  of  1858  was  to  have  been 
in  duplicate,  one  to  be  kept  by  the  defendant  and  the  other  by  the 
executors  of  Mary  Keith.  I  had  sen^  the  duplicate  to  the  defendant 
.to  be  executed  by  him  and  exchanged  for  that  executed  by  the  ex^- 
cutors.(a)  Part  of  the  arrangement  was,  that  the  *deeds  should  r«og 
be  exchanged.  I  never  did  apply  to  the  defendant  for  his  dupli-  V 
cate.  A  year  after,  I  was  callra  upon  to  deliver  up  the  deed  to. the 
defendant.  The  defendant  refusea  to  carry  out  the  arrangement,  as 
he  would  not  recognise  Pratt  as  tenant.  I  have  received  the  rent 
from  Pratt  down  to  Midsummer,  1858,  inclusive,  and  have  paid  it  one 
moiety  to  the  defendant  and  retained  the  other  for  the  executors." 

Lush,  Q.  G.,  pursuant  to  the  leave  reserved  t6  him,  in  Easter  Terui 
last,  obtained  a  rule  nisi*  to  enter  a  verdict  for  the  plaintiff  for  42.  4s., 
on  the  ground  "  that  no  assignment  of  the  premises  was  made  to  Uie 

-      ,.         (a)  TbedMdlnqiiMkioiLWMthiidiipItoAto.      .  v 


KIDNKR  V,  KEITH.    T.  V.  1863. 


defendant  by  tbe  alleged  indenture  of  tbe  6th  of  May,  1868,  the  deed 
haying  been  executed  as  an  escrow."  He  referred  to  Johnson  v.  Ba** 
ker,  4  B.  &  Aid.  440  (E.  C.  L.  R.  vol  6),  and  Bowker  v.  Burdekin, 
IIM.&W.  128. 

Philbriek  showed  cause. — The  question  is,  whether  the  deed  of  the 
6th  of  May,  1858,  was'  delivered  so  as  to  be  a  complete  and  valid 
deed,  or  whether  it  was  delivered  as  a  mere  escrow.  The  question 
arose  before  this  court  in  a  former  case  of  Keith  v.  Pratt,  when  the 
court  held  that  there  was  a  constructive  delivery,  and  that  Keith  was 
estopped  from  disputing  the  lease.  Tbe  facts  are  nutnerous  and  some- 
what complicated ;  but  the  point  they  result  in  is, — was  the  deed  of 
the  6th  of  May,  1868^  executed  and  handed  over  by  Keith  to  Mr. 
Withall,  and  afterwards  executed  by  the  executors  of  Mrs.  Keith,  a 
perfect  transaction?  It  appears  from  the  etidenoe  of  that  gentleman, 
that  the  deed  was  to  have  been  in  duplicate,  one  to  be  kept  by  the 
defendant,  the  other  by  the  executors  of  Mrs.  Keith ;  that  one  was 
executed  by  the  defendant  and  sent  to  Withall  for  execution  by  the 
executors,  and  thev  both  signed,  sealed^  and  delivered  it  in  his  pre* 
^ .  Q^  sence ;  and  that  Withall  sent  a  duplicate  to  the  defendant,  to  be 
^  ^executed  by  him  and  exchanged  for  that  executed  by  the  exe- 
cutors, it  being  part  of  the  arrangement  that  the  deeds  should  be  ex- 
changed ;  but  that  he  never  applied  to  the  defendant  for  his  dupli- 
cate. The  executors  kept  and  still  keep  tbe  deed  so  executed  by 
them  and  by  the  defendant.  [Williams,  J.-^If  there  was  a  perfect 
delivery,  but  upon  coafidenoe  that  the  deed  would  not  be  acted  upon 
until  the  duplicates  were  exchanged,  the  estate  would  pass.  In  the 
ordinary  ca&re  of  a  deed  executed  and  left  with  the  party*s  attorney, 
unless  it  is  delivered  to  the  attorney  as  «n  eserow,  not  to  be  delivered 
until  the  consideration-money  is  paid  or  some  other  condition  per- 
formed, it  operates  as  a  perfect  deed.]  The  fair  result  of  all  the  cases 
is,  that  no  fornml  words  are  necessary  to  constitute  a  delivery  as  an  es- 
crow :  Murray  v.  The  Earl  of  Stair,  2  B.  &  G.  82  (E.  C.  L.  R.  vol.  9\  8 
D.  k  B.  278,  and  the  authorities  tiiere  cited.  In  Sbeppard^s  Touch- 
stone, p.  68,  the  learned  author,  having  shown  that  delivery  is  essen* 
tial  to  the  validity  of  a  deed,  proceeds  to  describe  what  is  a  delivery 
as  an  escrow, — "  The  delivery  of  a  deed  as  an  escrow  is  said  to  he 
where  one  doth  make  and  seal  a  deed,  and  deliver  it  unto  a  stranger 
until  certain  eonditiona  be  performed,  and  then  to  be  delivered  to  him 
to  whom  the  deed  is  made^  to  take  effect  as  bis  deed.  And  so  a  maa 
may  deliver  a  deed,  and  suoh  a  delivery  is  good."  Tbe  editor  (Ather- 
ley)  adds  in  a  note,-^''The  delivery  of  a  d^  may  be  either  absolute^ 
as  by  delivering  it  to  the  grantee  himself  or  to  some  third  person  for 
him  without  any  condition  or  qualification ;  cfr  it  may  be  eondittoiml, 
as  a  delivery  to  sonse  third  person  to  keep  till  some  act  is  done  by 
the  grantee ;  in  which  case  it  is  not  delivered  as  a  deed,  but  aa  aa 
escrow,  that,  is,  a  sorowl  or  wviting  which  is  not  to  take  effidct  or  to 
operate  as  a  deed  till  the  aet  required  to  be  done  by  tbe  grantee  is 
actually  performed."  Here  there  was  no  oondttion  to  be  performed 
*411  ^^  order  *to  make  this  a  perfaot  deed.    It  was  executed  by  all 

^  the  parties,  and  was  intended  to  be  an  operative  deed ;  and  it 
waa  not  the  less  so  beeause  the  duplicate  was  not  handed  over.  It 
was  a  perfect  deed  upon  tbe  face  of  it ;  and  the  arrangement  spoken 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)         41 

of  by  Mr.  Withall  waa  a  mere  collateral  and  ancillary  agreement, 
which  could  not  operate  to  defeat  the  assignment  or  to  prevent  the 
estate  passing.  This  deed  was  not  an  escrow  within  the  above  defi- 
nitions. 

Walkin  William^  in  support  of  the  rule. — The  defendant  appears 
to  have  signed  one  part  of  the  deed.  There  was  no  evidence  that  he 
ever  delivered  it  It  was  the  part  of  the  deed  which  was  to  be  kept 
by  him.  The  executors  signed,  but  they  never  handed  it  over.  The 
rule  upon  the  subject  of  the  delivery  of  a  deed  as  an  escrow,  is  well 
laid  down  in  Gudgen  i7.  Basset,  6  Ellis  k  B.  986  (E.  G.  L.  R.  vol.  88). 
There,  G.  having  let  premises  to  P.  for  a  term  of  years,  P.  paying  100?. 
for  the  fixtures,  a  lease  by  deed  was  prepared  and  engrossed  on  parch- 
ment B.  paid  down  only  602.  It  was  agreed  between  G.  and  P.  that 
P.  should  be  let  into  possession  as  tenant  from  year  to  year  on  the 
terms  of  the  intended  lease  until  he  paid  the  balance  of  the  1002.  At 
the  same  time  6.  signed,  sealed,  and  delivered  the  deed,  which  how* 
ever  be  retained  in  his  own  possession.  No  third  person  was  present. 
No  words  qualifying  the  delivery,  or  expressly  stating  that  it  was  as 
an  escrow  till  the  payment  of  the  balance,  appeared  to  have  been  used. 
G.  brought  use  and  occupation  against  the  assignee  of  P.'s  interest ; 
and,  on  these  facts  appearing  at  the  trial,  an  objection  was  taken  that 
the  action  ought  to  have  been  on  the  covenants  in  the  deed.  It  was 
held  that  the  circumstances  warranted  an  inference  in  fact  that  it  was 
agreed  by  both  G.  and  P.,  at  the  time  of  the  execution  of  the  instru* 
ment,  that  it  should  not  operate  as  a  lease  until  the  payment ;  and 
*that,  if  there  was  such  an  agreement  by  both,  though  no  express  r^^o 
words  of  delivery  as  an  escrow  were  used,  it  would  not  operate  '- 
as  a  deed  till  then,  and  consequently  P.  was  tenant  from  year  to  year 
under  the  terms  of  the  instrument,  and  not  tenant  under  a  deed ;  and 
that  use  and  occupation  would  lie  against  him  or  the  assignee  of  his 
interest(a)  [WiLLXS,  J. — That  is  nothing  more  than  is  said  in 
Gomyns's  Digest,  Fait  (A.  4.):  "  If  a  man  throws  a  writing  on  a  table 
and  says  nothing,  and  the  party  takes  it,  this  does  not  amount  to  a 
delivery,  unless  it  be  found  to  lie  put  there  with  intent  to  be  delivered 
to  the  party."]  In  Bowker  v.  Burdekin,  11  M.  k  W.  128,  it  is  laid 
down  by  the  Court  of  Exchequer  that  it  is  not  necessary  that  the 
delivery  of  a  deed  as  an  escrow  should  be  by  express  words;  if,  from 
the  circumstances  attending  the  execution,  it  can  be  inferred  that  it 
was  delivered  not  to  take  effeet  as  a  deed  until  a  certain  condition 
were  performed,  it  will  operate  as  a  delivery  as  an  escrow  only. 
[WiLUAMS,  J.~Millership  v.  Brookes,  6  Hurlst.  k  N.  797,  as  far  as  it 
goes,  is  in  your  favour.  It  was  there  held  that  an  indenture  sealed 
and  delivered  to  an  attorney  who  is  acting  for  all  the  parties  to  it, 
with  directions  that  it  is  not  to  take  e£feot  till  something  else  is  done, 
operates  merely  as  an  escrow.  I  can  very  well  understand  that  this 
deed  should  not  be  intended  by  the  exeeiUars  to  be  binding  until  exe* 
euted  by  the  defendant.]  The  arrangement  was,  that  each  party  was 
to  prepare  and  execute  one  part,  and  then  exchange  them. 

W  iLLiAKfl^  J. — I  am  of  opimoa  that  this  rale  should  be  discharged. 

(a)  Lord  CampbeU  tbera  Mjt  :~"I  dioald  ttttcb  bo  weight  whatoTor  to  what  tbo  grantor 
■^ht  Uiink  or  Intind:  wbon  ho  doUTond  th«  InftMmont,  naloM  t  Chooght  that  It  waf  iotoiidod 
■liagfood  If  hotkpvHmihU  tba  ialivtiy  ihonld  opaf  aU  oaly  aa  tha  dallraij  of  an  OMfowJ* 


42  KIDNER  r.  KEITH.    T.  V.  1863. 

*431  '^^®  question  raised,  when  closely  *Iooked  at,  will  be  found  to 
■!  be  a  mere  question  on  the  evidence,  which,  by  agreement  of  the 
parties,  we  are  to  decide,  instead  of  a  jury.  There  is  no  doubt  in 
point  of  law,  that,  where,  by  express  declaration  or  from  the  circum* 
stances,  it  appears  that' the  delivery  of  a  deed  was  not  intended  to  be 
absolute,  but  that  the  deed  was  not  to  take  effect  until  some  contem- 
plated is  vent  should  have  happened,  the  deed  is  not  a  complete  and 
perfect  deed  until  that  event  has  happened.  The  question  is,  whether 
that  principle  can  be  brought  to  operate  here.  It  seems  to  me  that  it 
cannot.  If  the  facts  had  been,  that  the  defendant  had  never  executed 
the  deed,  and  that  the  delivery  by  the  grantors,  though  apparently  an 
absolute  delivery,  might  be  looked  upon  as  a  delivery  dependent  upon 
the  subsequent  execution  of  the  deed  by  the  defendant,  the  case  might 
have  deserved  consideration.  It  might  then  have  been  contended  that 
the  deed  was  never  intended  to  take  effect  until  the  defendant  had 
executed  it.  But  here  it  appears  that  the  deed  was  executed  by  the 
defendant ;  and  the  only  question  is,  whether  the  execution  and  de- 
livery by  the  grantors  was  conditional  on  there  bein^  a  duplicate  of 
the  deed.  That  there  was  an  arrangement  that  the  deed  should  be 
executed  in  duplicate,  there  can  be  no  doubt.  But  the  question  is, 
whether  it  was  to  be  a  condition.  There  seems  to  me  to  be  no  reason 
why  we  should  infer  that  the  delivery  by  the  grantors  was  to  be 
dependent  on  a  condition  that  a  duplicate  should  be  executed  by  the 
defendant.  The  circumstance  of  the  deed  being  executed  in  duplicate 
in  no  way  affects  the  position  of  the  parties.  The  execution  of  the 
single  deed  fully  carries  into  effect  the  intention  of  the  parties  and 
passes  the  interest.  The  execution  of  a  duplicate  merely  facilitates 
the  evidence.  It  seems  to  me  that  we  should  be  doing  what  the  par^ 
ties  never  intended,  if  we  were  to  hold  that  the  execution  of  a  dupli- 
#441  ^^*®  ^^^  ^  condition  *which  was  to  suspend  the  operation  of  the 
-^  deed  until  it  was  performed.  The  non>delivery  of  a  duplicate 
would  be  merely  a  breach  of  an  agreement,  and  not  a  non-performance 
of  a  condition. 

WiLLES,  J. — I  am  of  the  same  opinion.  The  only  question  is 
whether  the  arrangement  spoken  of  by  Mr.  Withall  on  his  cross* 
examination  show^  that  the  deed  was  delivered  upon  a  condition 
which  was  not  performed.  The  statement  is  that  there  was  an  arrange- 
ment between  the  parties  that  the  deed  was  to  be  executed  in  dupli- 
cate and  exchanged.  But,  for  the  reasons  given  bv  my  Brother  Wil- 
liams, I  think  it  is  clear  that  the  execution  of  the  duplicate  by  the  one 
party  was  not  made  a  condition  to  the  operativeness  of  the  deed.  No 
oenefit  could  result  to  the  executors  from  that.  The  object  of  the 
deed  was  to  rid  them  of  trouble,  to  undo  what  had  been  done  by  th^ 
deed  of  1854.  There  can  be  no  doubt  that  they  were  well  advised  in 
executing  it.  Their  interest  and  their  intention  were  to  have  done 
with  the  lease.  The  assignment  to  the  mother  was  a  breach  of  trust 
She  was  not  a  purchaser  for  value,  and  could  not  have  set  up  an^ 
right  against  the  settlement  of  1881.  Her  executors  could  derive  no 
tiepefit  from  the  assignment,  and  oonld  only  expect  -to  be  proceeded 
against  in. Chancery  if  they  made  any  claim.  Further,  it  appears 
that  the  defendant  never  was  reauestea  to  execute  the  duplicate  tke 
execution  of  which  is.  eon  tended,  to  be  a  condition,    further,  it  ap: 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)  44 

pears  that  the  executors  never  received  any  rent  after  the  execution 
of  the  deed  of  1858.  And  further,  it  appears  that  the  objection  is  not 
DOW  raised  by  them,  but  by  the  tenant.  It  appears  to  me  that  the 
deed  was  delivered  subject  to  no  condition,  that  it  vested  the  reversion 
in  the  defendant,  and  consequently  that  he  was  entitled  to  distrain 

Rule  discharged. 


•LARA  V.  HILL.     June  23.  [*45 

A.,  a  clerical  agent,  was  employed  to  sell  an  advowson  for  B.  upon  the  terms  contained  in  a 
cirenlar  in  which  it  was  stipulated  that  the  commission  should  become  payable  upon  the  adjust- 
ment of  terms  between  the  contracting  parties  in  every  instance  in  which  any  information  had 
been  derived  at,  or  any  particulars  had  been  given  by,  or  any  communication  whatsoever  had 
been  made  from  A.'s  office,  however  and  by  whomsoever  the  negotiation  might  have  been  con- 
dncted,  and  notwithstanding  the  business  might  have  been  subsequently  taken  off  the  books,  or 
the  negotiation  might  have  been  concluded  in  consequence  of  communications  previously  made 
from  other  agencies,  or  on  information  otherwise  derived,  or  the  principals  might  have  made 
themselves  liable  to  pay  commission  to  other  agents ;  and  that  no  accommodation  that  might  be 
afforded  at  to  time  of  payment  or  advance  ehould  retard  the  payment  o/  eommieeion. 

A  contract  of  sale  having  been  arranged  through  A.'s  agency,  and  duly  executed,  and  a 
deposit  paid  on  the  14th  of  October,  1862,  the  residue  of  the  purchase-money  being  payable  on 
the  31st  of  December, — Held,  that  A.  was  entitled  to  his  commission  at  all  events  on  the  Slst  of 
December,  although  the  full  purchase-money  had  not,  for  some  unexplained  reason,  then  been 
paid. 

This  was  an  action  brought  to  recover  125?.  for  commission  on  the 
gala  of  an  advowson.    The  defendant  pleaded  never  indebted. 

The  cause  came  on  to  be  tried  before  Cockburn,  C.  J.,  at  the  last 
Spring  Assizes  for  the  county  of  Kent,  when  a  verdict  was  entered 
for  the  plaintiff  for  the  amount  claimed,  subject  to  the  opinion  of  the 
court  upon  the  following  case : — 

1.  The  plaintiff  is  an  agent  for  the  sale  of  advowsons,  &c.,  and  the 
defendant  is  an  attorney. 

2.  In  the  ordinary  course  of  the  plaintiff's  business,  the  commission 
becomes  payable  upon  the  signing  of  the  contract  or  agreement  for 
the  purchase. 

8.  In  July,  1861,  the  plaintiff  was  employed  by  the  defendant  to 
sell  the  advowson  of  the  living  of  St.  Keverne,  cff  which  the  defendant 
was  the  patron. 

4.  Such  employment  was  upon  the  terms  contained  in  a  printed 
circular  of  the  plaintiff,  the  two  material  clauses  of  which-  are  as 
follows, — "  Disputes  often  arise  as  to  the  right  to  commission  when 
principals  employ  other  agencies;  therefore,  to  avoid  all  question 
.  upon  this,  it  is  aistinctly  understood  that  the  commission  becomes 
payable  upon  the  adjustment  of  terms  between  the  contracting  parties 
in  every  instance  in  which  any  information  has  been  derived  at,  or 
any  particulars,  whether  in  writing  or  otherwise,  have  been  given  by 
or  any  communication  whatsoever  has  *been  made  from^  this  r^Aa 
oflSce,  however  and  by  whomsoever  the  negotiation  may  have  '■ 
been  conducted,  and  notwithstanding  the  business  may  have  been 
subsequently  taken  off  the  books,  or  the  negotiation  may  have  been 
concluded  in  consequence  of  communications  previously  made  from 
other  agencies,  or  on  information  otherwise  derived,  or  the  principals 
may  have  made  themselves  liable  to  pay  commission  to  other  agents." 

C,  B.  H.  S.,  VOL.  XV.— 4 


46  LARA  V.  HILL.    T.  V.  1863. 

"No  accommodation  that  may  be  afforded  as  to  time  of  payment  or 
advance,  to  retard  the  payment  of  commission." 

5.  The  plaintiff,  having  negotiated  with  maxy  parties  for  the  sale, 
ultimately,  on  the  18th  of  August,  1862,  made  a  binding  arrangement 
with  a  Dr.  Pinnock  for  the  purchase  by  him  of  the  advowson,  upon 
the  terms  contained  in  the  instructions  for  sale  given  by  the  defendant, 
and  with  his  approbation. 

6.  A  draft  agreement  or  contract  for  the  sale  and  purchase  of  the 
advowson  was  prepared  by  the  plaintiff  and  sent  to  the  defendant. 

7.  On  the  2d  of  October,  1862,  an  agreement  between  the  defendant 
and  Dr.  Pinnock  for  the  sale  and  purchase  of  the  advowson  was  duly 
signed,  by  which  the  sum  of  350/.  was  made  payable  on  the  14th  of 
October,  1862,  by  way  of  deposit,  and  the  residue  of  the  purchase- 
money  (4150/.)  on  the  31st  of  December,  1862.  This  agreement  was 
prepared  by  the  attorneys  of  the  parties  thereto,  and  without  the 
knowledge  of  the  plaintiff;  and  its  terms  were  substantially  the 
•Bame  as  those  previously  agreed  upon  between  the  plaintiff*  and  Dr, 
Pinnock. 

8.  The  350/.  was  duly  paid:  the  residue  remains  unpaid  to  the 
present  time:  but  there  is  no  reason  to  suppose  that  the  purchase  will 
not  be  ultimately  completed. 

9.  The  writ  in  this  action  was  issued  on  the  3d  of  February,  1803. 
*471        *^^*  ■'■'  ^^  agreed  between  the  parties  that  the  pleadings  in  this 

-'   action  on  both  sides  shall  form  part  of  this  special  case,  and  that 
the  court  may  draw  any  inferences  from  the  facts. 

11.  The  plaintiff*  contends,  that,  when  an  agreement  was  entered 
into  with  a  person  the  vendor  was  content  to  accept  as  purchaser,  the 
right  to  commission  accrued ;  and  that  he,  as  the  agent  introducin.cj 
the  accepted  purchaser,  was  then  entitled  to  receive  his  commission ;  and 
that  he  was  not  bound  to  wait  until  the  purchase-money  was  paid,  and 
the  whole  transaction  completed. 

12.  The  defendant  contends  that  the  right  to  such  commission  did 
not  accrue,  and  the  plaintiff  as  agent  was  not  entitled  to  receive  his 
commission  until  the  purchase-money  was  paid,  and  the  whole  trans- 
action completed. 

The  question  for  the  opinion  of  the  court  was,  whether  the  commis- 
sion became  payable  before  action. 

If  the  court  should  be  of  opinion  that  it  did,  then  the  verdict 
entered  for  the  plaintiff  was  to  stand,  but  to  be  reduced  to  125/.  If 
the  court  should  be  of  a  contrary  opinion,  then  a  verdict  was  to  be 
entered  for  the  defendant,  unless  the  court  should  also  be  of  opinion, 
that,  although  the  plaintiff  could  not  claim  commission,  he  was  under 
the  circumstances  entitled  to  recover  something,  in  whieh  case  the 
verdict  was  to  stand,  but  to  be  reduced  to  such  an  amount  as  should 
be  ascertained  in  such  way  as  the  court  might  direct. 
*481  ^^y<^^f  for  the  plaintiff.(a) — The  case  shows  that  the  *plaintiff 
-'   found  a  purchaser  for  the  advowson,  and  that  the  contract  was  duly 

(a)  The  points  marked  for  argameot  on  the  part  of  the  plaintiff  were  as  follows  :—  I 

"  1.  That  the  contract  entered  into  between  the  plaintiff  and  the  defendant  was,  that  the 
commission  should  be  payable  upon  the  adjustment  of  terms  between  vendor  and  purchaser  : 
•'  2.  That,  the  case  finding  that  such  was  the  contract,  and  that  the  terms  had  been  a<y nstad 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  48 

. 1 

signed  and  a  deposit  paid :  and  there  was  no  reason  to  doubt  that  the 
remainder  of  the  purchase-money  would  be  forthcoming.  The  plain- 
tiff has  therefore  done  all  that  was  necessary  to  entitle  him  to  his 
commission  according  to  the  terms  of  his  employment.  The  special 
clause  in  the  plaintiff's  circular  amounts  to  a  statenqent  of  what  is  the 
general  understanding  in  these  cases.  There  having  been  an  absolute 
adjustment  of  the  terms  of  the  contract,  the  vendor  cannot  deprive  the 
agent  of  his  commission  by  choosing  to  give  time  for  payment  of  the 
balance  of  the  purchase-money.  [Bylks,  J. — If  the  terms  of  the 
bargain  had  been  that  the  commission  should  be  payable  upon  the 
completion  of  the  contract,  it  might  possibly  have  been  contended  that 
that  event  had  not  happened  until  the  payment  of  the  purchase-money.] 
Even  that  would  be  no  answer  to  the  plaintiff's  claim,  if  the  payment 
of  the  purchase-money  was  delayed  by  the  act  of  the  defendant  him- 
self. The  intention  of  the  parties  evidently  was,  that  the  commission 
should  become  payable  as  soon  as  the  terms  were  finally  adjusted 
between  the  vendor  and  the  vendee.  And  this  is  no  hardship  on  the 
defendant.  He  has  accepted  ^he  purchaser,  and  has  receive4  the 
deposit,  *and  got  a  binding  bargain ;  and,  for  anything  that  r^A^ 
appears  to  the  contrary,  he  may  receive  the  balance  of  the  pur-  ^ 
chase-money  to-morrow. 

M.  Jones  (with  whom  was  Lush,  Q.  C),  for  the  defendant.(a) — The 
special  clause  in  the  plaintiff's  circular  only  applies  where  the  princi- 
})al,  after  employing  the  plaintiff,  has  gone  to  another  agent  and  ob- 
tained a  more  advantageous  bargain  :  if  it  were  otherwise,  there  would 
have  been  no  necessity  for  the  stipulation  that  "  no  accommodation  that 
may  be  afforded  as  to  time  of  payment  or  advance  shall  retard  the 
payment  of  commission."  And,  if  the  special  clause  did  apply,  no 
time  being  fixed  for  the  payment  of  the  commission,  it  is  not  due 
until  the  whole  of  the  purchase-money  is  paid.  [Williams,  J. — The 
commission  is  to  be  paid  notwithstanding  time  given  to  the  purchaser 
for  completing  the  purchase  by  paying  the  money.  This  action  was 
not  commenced  until  after  the  purchase-money  had  become  due.] 

Joyce,  in  reply,  was  stopped  by  the  court. 

Williams,  J. — I  am  of  opinion  that  the  plaintiff  is  entitled  to  judg- 
ment. I  feel  some  difiiculty  in  saying  that  the  effect  of  the  contract 
between  these  parties  is,  that  the  commission  is  in  all  cases  payable 
upon  the  *adjustment  of  the  terms  between  the  vendor  and  the  r^g^ 
purchaser.  But  it  is  unnecessary  to  decide  that,  because  here  ^ 
the  action  was  not  brought  until  the  time  was  passed  at  which  the 
purchase-money  had  become  payable.  Mr.  Jones  says  that  this  con- 
struction is  inconsistent  with  the  clause  in  the  printed  circular, — '*  No 

between  Teoclor  and  parobaser,  time  given  to  the  pnrebts^r  by  the  vendor  for  the  oompletion 
cannot  postpone  the  plninti£f't  right  to  bii  oommiaeion  : 

"  3.  That  the  apeeial  terma  of  the  printed  eironlar,  ao  far  aa  they  affeot  the  preaent  eaie^  are 
in  accordance  wiUi  the  practioe  found  aa  the  naage  in  the  plaintiff 'a  profeaaion,  that  the  com- 
laiaaion  becomea  payable  upon  the  aigning  of  the  contract^ — in  ether  worda,  npon  the  a4jnat- 
Bent  of  the  terma." 
(a)  The  pointa  marked  for  argument  on  the  part  of  the  defendant  were  aa  followa : — 
**  That  there  waa  no  agreement  by  the  defendant  to  pay  the  plaintiff  oommiaaion,  nnleaa  there 
was  a  aale  completed,  and  the  aale  baa  not  been  completed :  and  that  the  contract  waa  entire, 
and,  itntil  there  waa  a  aale  wmpUted,  the  plaintiff  had  not  done  aU  that  waa  required  to  be  per- 
formed on  bia  part,  and  no  right  of  payment  of  any  amount  aroM  until  the  whole  oonuaiaaioa 
vie  eaned  on  completion  of  the  pnrchaae." 


50  LARA  v.  HILL.    T.  V.  1863. 

— 1 ' « 

accommodation  that  may  be  afforded  as  to  time  of  payment  or  advancf 
to  retard  the  payment  of  commission."  But  I  apprehend  the  meaning 
of  that  is  simply  this,  that,  if  the  vendor,  who  has  by  the  terms  of  the 
contract  a  right  to  insist  on  payment  of  the  purchase-money  by  a 
given  day,  chooses  to  enlarge  or  extend  the  day  of  payment,  such 
extension  of  the  day  of  payment  shall  not  retard  the  agent's  right  to 
his  commission.  I  think  the  plaintiff  was  clearly  entitled  to  payment 
at  the  time  he  commenced  his  action. 

WiLLES,  J. — I  am  of  the  same  opinion.  The  purchase-money  was 
by  the  terms  of  the  contract  due  two  months  before  the  commence- 
ment of  this  action ;  and  no  satisfactory  account  is  given  why  it  has 
not  been  paid ;  nothing  is  stated  to  warrant  the  notion  that  there  was 
any  unwillingness  or  inability  on  the  part  of  the  purchaser  to  pay  it. 
The  only  fair  conclusion  of  fact,  therefore,  which  we  can  arrive  at,  is, 
that  the  defendant  has  chosen  to  accommodate  Dr.  Finnock  by  not  call- 
ing upon  him  to  complete  the  purchase  at  the  time  he  was  entitled  to 
/  do  so.  Besides,  he  will  receive  interest  on  the  money  in  the  mean- 
time, and  so  be  placed  virtually  in  the  same  position  as  if  the  pur- 
chase had  been  completed  on  the  31st  of  December.  I  am  clearly  of 
opinion  that  the  clause  as  to  accommodation  applies :  it  obviously  points 
to  a  voluntary  act  on  the  part  of  the  vendor.  The  plaintiff  was  en- 
titled to  his  commission  at  the  latest  on  the  31st  of  December. 
,-.^1  Byles,  J. — I  also  am  of  opinion  that  the  plaintiff  is  *entitled 
^  J  to  recover  in  this  case.  There  are  four  epochs  at  which  the 
commission  may  be  payable, — first,  at  the  time  of  the  adjustment  of 
the  terms  of  the  sale,  or, — secondly,  at  the  time  stipulated  by  the  con- 
tract, or, — thirdly,  at  the  time  stipulated  for  the  completion  of  the 
purchase,  or, — fourthly,  at  the  time  of  the  actual  payment  of  the  pur- 
chase-money. I  was  at  first  disposed  to  agree  with  Mr.  Joyce  that 
the  special  clause  in  the  plaintifiTs  circular  amounted  to  an  implied 
agreement  that  what  is  there  stated  is  the  understanding  in  all  cases. 
That,  however,  upon  consideration,  I  conceive  to  be  doubtful.  Then 
we  come  to  the  time  mentioned  in  the  contract.  It  seems  to  me  that 
the  words  '*  no  accommodation  that  maybe  afforded  as  to  time  of  pay- 
ment or  advance  to  retard  the  payment  of  commission,"  show  that  the 
commission  becomes  due  when  the  money  stipulated  as  the  purchase- 
money  becomes  payable ;  and  that  is  general  and  applicable  to  all 
cases.  If  the  vendor  for  any  reason  thinks  fit  to  postpone  the  day  for 
the  completion  of  the  contract  by  payment  of  the  purchase-money, 
the  commission  becomes  due,  not  at  the  time  of  actual  payment,  but 
at  the  time  when  by  the  contract  it  ought  to  have  been  paid.  For 
these  reasons,  I  agree  with  the  rest  of  the  court  in  thinking  that  this 
action  was  rightly  brought,  the  time  for  the  payment  of  the  purchase- 
money  for  the  advowson  in  question  having  elapsed  before  its  com- 
mencement. Judgment  for  the  plaintiffl 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)         52 


♦ELLIS  V.  THE  MAYOR,  ALDERMEN,  AND  BURGESSES  r»K«> 
OF  THE  BOROUGH  OF  BRIDGNORTH.    Jult/  6.     >■  ^^ 

From  time  immemorial,  UDtil  lately,  a  weekly  market  had  been  held  in  the  High  Street  of 
Bridgnorth.  The  market  belonged  to  the  corporation  of  Bridgnorth,  who  were  also  lords  of 
the  manor  in  which  the  borongh  is  situate.  The  plaintiff  was  the  owner  of  a  house  in  the  High 
Street;  and  he  and  the  previous  owners  and  occupiers  of  that  house,  as  well  as  several  other 
occupiers  of  houses  in  High  Street,  had  from  time  immemorial  erected,  on  market-days,  stalls 
opposite  their  respective  houses,  and  had  exposed  thereon  goods  for  sale  in  the  market,  or  let 
the  stalls  for  hire  to  others  who  had  done  so :  and  no  payment  had  ever  been  made  to  or  claimed 
by  the  corporation  for  stallage  or  for  tolls  of  things  sold  at  such  stalls,  though  they  took  tolls 
of  similar  produce  exposed  elsewhere  in  the  market.  The  corporation  removed  the  market  to 
another  place  within  the  borough,  at  a  small  distance  from  the  High  Street,  and  so  lAcessarily 
iojurionsly  affected  the  interests  of  those  who  had  rights  in  the  old  market : — 

Held,  that  the  plaintiff  was  entitled  to  maintain  an  action  for  the  unlawful  disturbance  by 
the  corporation  of  his  enjoyment  of  this  right, — which  was  probably  conferred  in  oonsideraUon 
that  the  holding  of  the  market  must  necessarily  diminish  on  market-days  the  trade  and  custom 
of  the  shops  kept  in  such  houses,  and  the  shopkeepers  were  therefore  privileged  to  advance,  as 
it  were,  their  shops  into  the  market  itself  by  having  stalls  in  the  street  commensurate  with  the 
fronts  of  their  houses,  and  consequently  that  the  enjoyment  of  the  stalls  by  the  owners  and 
oecupiers  of  the  houses,  and  those  licensed  by  them,  was  sufficiently  connected  with  the  enjoy- 
ment of  the  houses  to  satisfy  the  rule  acted  upon  in  Ackroyd  v.  Smith,  10  C.  B.  164,  and  Bailey 
t.  Stephens,  12  C.  B.  N.  S.  91,  that  no  right  can  be  annexed  to  a  bouse  or  land  which  is  uncon- 
nected with  the  enjoyment  or  occupation  thereof. 

field  also,  that  the  removal  of  the  market  was  not  justifiable  under  the  Public  Health  Act^ 
1858  (11  A  12  Vict  c.  63),  orihe  Local  Government  Act,  1858  (21  A  22  Vict  c.  98),  inasmuch 
as  the  power  to  provide  market-places  conferred  upon  the  local  board  by  the  50th  section  of 
the  list-mentioned  act,  is  expressly  qualified  by  the  proviso  that  no  market  shall  be  established 
so  as  to  interfere  with  any  rights  enjoyed  by  any  person,  without  his  consent 

This  was  an  action  brought  by  tbe  plaintiff  against  the  defendants 
for  disturbing  him  in  the  enjoyment  of  his  alleged  right  of  placing  a 
stall  for  the  sale  of  goods  by  himself  or  his  licensees,  on  market-days, 
in  front  of  his  shop  in  a  market  held  in  the  High  Street,  Bridgnorth. 

The  first  count  of  the  declaration  stated,  that,  before  and  at  and 
during  the  times  of  the  committing  by  the  defendants  of  the  griev- 
ances thereinafter  in  that  count  mentioned,  a  market  for  the  buying  and 
selling  of  divers  goods  and  merchandises  was  lawfully  held  in  High 
Street,  Bridgnorth,  to  wit,  weekly,  on  Saturdays,  and  during  all  the 
said  times  the  plaintiff  was  possessed  of  a  house  in  High  Street  afore- 
said, and  entitled  to  a  certain  liberty,  easement,  or  privilege,  to  wit, 
that  of  placing  a  stall  or  standing  in  High  Street  aforesaid,  on  the 
days  when  the  said  market  was  held  as  aforesaid,  for  the  sale  thereat 
by  the  plaintiff  or  others  by  his  permission,  for  reward  to  the  plaintiff, 
of  such  goods  *as  aforesaid  belonging  to  him  or  them  respect-  r^^o 
ively  in  the  said  market  to  persons  frequenting  the  said  market,  ^ 
as  to  the  said  house  appertaining  and  oelonging;  which  said  stall  or 
standing  was  at  and  during  the  said  times  used  for  the  purpose  afore- 
said by  a  certain  person  by  the  plaintiff's  permission,  for  reward  pay- 
able by  him  to  the  plaintiff:  Yet  the  defendants  on  several  occasions 
whilst  the  said  market  was  held  and  the  plaintiff'  possessed  and  en- 
titled as  aforesaid,  wrongfully  disturbed  the  plaintiff'  in  the  enjoyment 
of  his  said  liberty,  privilege,  or  easement,  and  wrongfully  established 
and  held,  on  the  days  on  which  the  said  market  in  High  Street  was 
held,  a  market  for  the  buying  and  selling  of  such  goods  and  mercban- 
dise,  near  to  the  place  where  the  said  market  was  held  as  aforesaid, 
and  wrongfully  kept  and  continued  the  said  market  so  held  thenceforth 


63        ELLIS  V.  MAYOR,  &c.,  OF  BRIDGNORTH.    T.  V.  1863. 

up  to  the  commencement  of  this  suit;  whereby  the  plaintiff's  said 
liberty,  privilege,  or  easement  was  rendered  less  valuable. 

There  was  a  second  count  similar  to  the  first, — the  breach  being 
that  the  defendants  on  several  occasions,  whilst  the  said  market  was 
held  and  the  plaintiff  entitled  and  possessed  as  aforesaid,  unlawfully 
disturbed  the  plaintiff  in  the  enjoyment  of  his  said  liberty,  privilege, 
or  easement,  and  on  the  said  occasions  wrongfully  obstructed  the 
holding  of  the  said  market,  and  wrongfully  continued  such  obstruc- 
tion as  aforesaid ;  whereby  the  plaintiff's  said  liberty,  privilege,  or 
easement  was  rendered  less  valuable. 

The  third  count  stated,  that,  before  and  at  and  during  the  times  of 
the  committing  by  the  defendants  of  the  grievances  in  that  count 
mentioned,  a  market  for  the  buying  and  selling  of  divers  goods  and 
merchandise  was  Ijiwfully  held  in  High  Street,  Bridgnorth,  to  wit, 
weekly,  on  Saturdays;  and  during  all  the  said  times  the  plaintiff  was 
,;^4-|  lawfully  possessed  of  a  house  in  *High  Street,  Bridgnorth,  and 
■'  certain  land  in  High  Street  aforesaid  near  the  said  house  was  in 
the  possession  of  the  plaintiS*'s  tenant,  the  reversion  thereof  belong- 
ing to  the  plaintiff,  on  which  land  the  plaintiff's  said  tenant  then 
lawfully  kept,  on  the  days  on  which  the  said  market  was  held  as 
aforesaid,  a  stall  or  standing  for  the  sale  by  the  plaintiff's  «aid  tenant 
of  such  goods  as  aforesaid  in  the  said  market  to  persons  frequenting 
the  same,  and  then  lawfully  sold  thereat  such  goods  as  aforesaid  to 
such  persons:  Yet,  &c.,  breach  as  in  the  first  count. 

The  defendants  pleaded, — first,  not  guilty, — secondly,  that  the  said 
alleged  market  was  not  at  any  of  the  said  times  when,  &c.,  lawfully 
held  in  High  Street,  Bridgnorth,  aforesaid, — thirdly,  to  the  first  and 
second  counts,  that  the  plaintiff  was  not  at  the  times  therein  mentioned, 
or  either  of  them,  entitled  to  the  said  supposed  liberty,  easement,  or 
privilege  in  those  counts  respectively  mentioned,  nor  was  the  said 
stall  then  used  for  the  purpose  therein  mentioned, — fourthly,  to  the 
third  count,  that,  at  the  times  therein  mentioned,  the  said  land  in 
High  Street  was  not  in  the  possession  of  the  plaintiff's  tenant,  nor  did 
the  reversion  thereof  belong  to  the  plaintiff,  as  alleged, — fifthly,  to 
the  third  count,  that,  at  the  said  times  when,  &c.,  the  plaintiff's  tenant 
on  the  said  land  did  not  lawfully  keep,  on  the  days  on  which  the  said 
market  was  held,  the  said  stall  or  standing  for  the  purpose  therein 
mentioned.     Issue  thereon. 

The  cause  came  on  for  trial  at  the  Shropshire  Spring  Assizes,  1862, 
when  a  verdict  was  by  consent  entered  for  the  plaintiff  for  the  dam- 
ages in  the  declaration  (5/.  5«),  subject  to  a  special  case,  the  court  to 
be  at  liberty  to  draw  inferences  of  fact,  and  to  direct  any  amendments 
in  the  pleadings  or  otherwise  which  might  be  thought  necessary  for 
the  justice  of  the  case.  The  case  stated  was  as  follows: — 
^j-- 1  *1.  The  town  of  Bridgnorth,  in  the  county  of  Salop,  was  and 
*^^  is  an  ancient  borough  and  market  town.  Prior  to  the  passing 
of  the  Munincipal  Corporation  Reform  Act,  5  &  6  W.  4,  c.  76,  the 
corporation  of  Bridgnorth  was  a  corporation  by  prescription,  under 
the  style  of  "  The  Bailiffs  and  Burgesses  of  the  borough  of  Bridgnorth ;" 
their  privileges  being  secured  to  them  by  charters  of  King  Henry  the 
Second,  King  John,  King  Henry  the  Third,  and  King  James  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  55 

First.  The  borough  is  included  in  the  2d  section  of  Schedule  A. 
annexed  to  the  said  Municipal  Corporation  Act. 

2.  The  corporation  are  the  lords  of  the  manor  of  Bridgnorth  (which 
includes  the  borough),  and,  subject  to  any  rights  which  the  facts 
hereinafter  stated  may  show  to  be  in  the  plaintiff,  are  the  lords  and 
owners  of  the  market  and  of  the  soil  of  the  streets  in  the  said  town, 
including  the  principal  street,  called  High  Street. 

3.  From  time  immemorial,  until  the  year  1838,  an  open  market 
f)r  the  sale  of  horses,  cattle,  sheep,  pigs,  corn,  and  all  kinds  of  provi- 
sions and  merchandise,  has  been  held  weekly,  on  Saturdays,  in  the 
High  Street ;  and,  for  the  greater  accommodation  of  the  persons  fre- 
quenting this  market,  the  corporation  in  the  year  1850  erected  a 
market-hall  in  the  middle  of  the  High  Street.  There  is  no  evidence 
to  show  that  any  arrangement  or  payment  was  made  for  or  by  reason 
of  its  erection  with  or  to  the  owners  or  occupiers  of  the  houses  in 
front  of  which  the  market-hall  extends.  Such  portions  of  the  goods 
brought  to  the  market  as  could  be  provided  with  accommodation 
under  the  market-hall  have  ever  since  continued  to  be  exposed  there ; 
but  the  rest,  with  the  horses,  cattle,  sheep,  pigs,  and  corn,  were 
exhibited  for  sale  in  the  open  High  Street.  From-  the  time  of  the 
erection  of  the  market-hall,  the  corporation  have  exercised  the  entire 
and  sole  'control  over  it  and  the  standings  in  it,  and  have  re-  r,-g 
ceived  payments  in  respect  of  such  standings  on  two  of  the  days    ^ 

on  which  fairs  are  held  in  the  borough  (there  being  eight  fair  days 
during  the  year);  but  they  have  not  received  any  payment  in  respect 
of  the  said  hall  or  standings  on  market-days. 

4.  The  market  continued  to  be  thus  held  until  the  year  1838,  when 
the  corporation  of  the  borough,  under  by-laws  made  in  that  behalf, 
removed  the  pig-market  and  also  the  cattle-market  to  another  part  of 
the  town.  The  other  commodities  brought  to  the  market  continued 
to  be  exposed  for  sale  in  High  Street. 

5'  The  corporation  appointed  clerks  of  the  market,  and  formerly 
took  tolls  in  kind  of  corn,  grain,  fruit,  nuts,  and  other  like  produce 
brought  into  the  market ;  and,  at  various  times  from  a  very  early 
period,  let  out  such  tolls  for  considerable  sums :  but  the  taking  of  such 
tolls  was  suspended  in  the  year  1817  by  order  of  the  corporation,  and 
they  have  never  since  been  collected.  No  tolls  were  ever  taken  of 
goods  sold  at  the  stalls  hereinafter  mentioned,  nor  was  any  rent  or 
sum  of  money  ever  received  by  the  corporation  in  respect  of  such 
stalls,  except  for  two  stalls  standing  on  a  piece  of  land  belonging  to 
the  corporation,  near  the  town -hall. 

6.  The  plaintiff  is  the  owner  and  occupier  of  a  house  in  High  Street, 
standing  on  the  west  side  thereof;  and  he  and  the  previous  owners 
and  occupiers  of  his  house,  as  well  as  several  other  occupiers  of  houses 
in  High  Street,  have  from  time  immemorial  erected  on  market-days 
wooden  movable  stalls  or  standings,  with  tarpaulin  coverings ;  and 
these  have  been  set  up  or  erected  opposite  to  their  respective  houses 
in  the  said  street;  and  they  have  either  used  such  stalls  or  standings 
for  the  display  and  sale  of  their  own  merchandise,  or  let  them  to  other 
persons  attending  the  said  market,  who  have  paid  for  the  right  of 
standing  and  the  use  of  *such  stalls,  to  the  occupiers  of  the  houses  p- ^ 
opposite  to  which  the  same  have  been   placed,  certain   sums   '■ 


67        ELLIS  V,  MAYOR,  &c.,  OF  BRIDGNORTH.    T.  V.  1863. 

agreed  upon  between  them  and  such  other  persons  and  the  occupiers, 
and  which  in  the  plaintiff's  case  have  amounted  to  13/.  a  year.  Such 
user  has  been  as  of  right  and  without  interruption,  except  so  far  as 
the  facts  stated  in  this  case  may  show  to  the  contrary.  The  plaintiff 
has  never  himself  used  such  stalls  or  standings  for  the  display  and 
sale  of  his  own  goods,  but  has  always  let  them  to  others. 

7.  Amongst  the  plaintiff's  title-deeds  are  three  several  conveyances 
of  the  property,  dated  respectively  in  the  years  1735,  1782.  and"  1821, 
in  which  the  words  "stalls  and  standings  in  the  street"  are  used 
among  the  general  words  at  the  end  of  the  parcels;  but  no  number 
is  specified  in  any  of  them.  Similar  wprds  occur  in  old  conveyances 
and  leases  of  houses  in  various  parts  of  the  town  of  Bridgnorth ;  but 
there  is  no  evidence  of  any  user  under  or  according  to  such  convey- 
ances or  leases. 

8.  The  stalls  or  standings  occupy  part  of  the  highway  on  market- 
days,  and  to  that  extent  obstruct  the  free  passage  of  the  public.  The 
highway  on  the  east  side  of  the  said  market- hall  is  left  open  and  un- 
obstructed for  the  use  of  the  public. 

9.  The  corporation  have  from  time  to  time  regulated  the  standings 
in  the  market  on.  the  east  side  of  the  market-hall,  for  the  prevention 
of  encroachments  on  the  carriage  thoroughfare,  which  is  and  always 
has  been  used  only  on  that  side  of  the  street  on  market-days;  and, 
when  disputes  have  arisen  between  the  people  attending  the  market, 
either  in  respect  of  the  standings  in  any  part  of  the  High  Street  or  of 
any  other  matter,  the  policemen  of  the  borough  have  by  order  of  the 
mayor  interfered  to  settle  such  disputes :  but  they  have  not  interfered 
*581  ^^^'^  ^^^  plaintiff's  *standings ;  nor  have  the  corporation  or 
.  ^  any  one  acting  under  their  authority  interfered  with  the  right  of 
stallage  as  between  the  occupiers  or  owners  of  the  houses  in  High 
Street  who  had  stalls  or  standings  to  let  and  those  to  whom  they  were 
let. 

10.  In  the  year  1854,  a  joint-stock  company  for  the  purposd  of 
erecting  new  market-buildings  in  the  said  town  of  Bridgnorth  was 
formed  under  the  provisions  of  the  7  &  8  Vict.  c.  110,  and  was  after- 
wards registered  under  the  provisions  of  the  Limited  Liabilitv  Act, 
1855  (18  &  19  Vict.  c.  133),  by  .the  name  of  ."The  Bridgnorth  Public 
Buildings  and  Markets  Company,  Limited."  The  company  erected 
certain  buildings  on  a  site  out  of  High  Street,  but  within  twenty 
yards  of  that  part  of  it  where  frequenters  of  the  market  had  exposed 
their  wares  for  sale,  and  at  a  distance  of  110  yards  from  the  old  mar- 
ket-hall, and  of  150  yards  from  the  plaintiff's  house.  On  this  site,  in 
the  course  of  the  years  1855  and  1856,  they  erected  large  buildings, 
with  conveniences  for  holding  the  market  therein,  and  for  other  pur- 
jioses.  [A  plan  was  annexed  to  and  was  to  form  part  of  the  case, 
showing  the  situation  of  the  High  Street,  the  position  and  extent  of 
the  stalls  or  standings  therein,  the  market-hall,  buildings,  and  houses 
referred  to  in  the  case,  the  boundaries  of  the  parishes,  and  also  the 
size  of  the  said  buildings.] 

11.  The  said  company  has  not  obtained  from  the  Crown  any  char- 
ter or  grant  empowering  it  to  establish  a  new  mfirket  in  the  said 
borough  of  Bridgnorth ;  nor  has  it  obtained  any  act  of  parliament  or 
other  authority  to  enable  it  to  remove  or  in  any  way  interfere  with 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)  58 

the  said  market  so  from  time  immemorial  existing  ia  High  Street 
aforesaid. 

12.  The  new  market  was  first  opened  by  the  company  in  Decem- 
ber, 1856,  and  a  large  number  of  persons  went  into  it ;  but,  as  a  con- 
siderable portion  still  ^continued  to  use  the  old  market,'the  re-  r^»^q 
mainder  returned  gradually ;  and  the  new  market  was  closed.       *- 

13.  The  Public  Health* Act,  1848  (11  &  12  Vict.  c.  63),  was,  by 
order  in  council  in  1853,  applied  to  the  borough  of  Bridgnorth  ;  and 
the  Local  Government  Act,  1858  (21  &  22  Vict.  c.  98),  took  effect  in 
the  said  corporate  district  from  the  1st  of  September,  1858,  and  such 
act  has  since  been  in  full  force  and  operation  within  such  corporate 
district. 

14.  By  the  last-mentioned  statute  (s.  24)  it  is  enacted  that  the  duty 
of  carrying  into  execution  the  said  act  shall  be  vested  in  a  local 
board,  and  that  such  local  board  in  corporate  boroughs  shall  be  the 
mayor,  aldermen,  and  burgesses  acting  by  the  council :  and  the  50th 
section  of  the  act  enacts  that  the  local  board  in  corporate  districts 
shall,  with  the  consent  of  two-thirds  of  the  local  board,  have  power 
to  do  the  following  things,  or  any  of  them,  within  the  district: — 

1.  To  provide  a  market-place  and  construct  a  market-house  and 
other  conveniences  for  the  purpose  of  holding  markets:  to  provide 
houses  and  places  for  weighing  carts :  to  make  convenient  approaches 
to  such  markets :  to  provide  all  such  matters  and  things  as  may  be 
necessary  for  the  convenient  use  of  such  market :  to  purchase  or  take 
on  lease  land  and  public  or  private  rights  in  markets  and  fairs  for  any 
of  the  foregoing  purposes :  to  take  stallages,  rents,  and  tolls  in  respect 
of  the  use  by  any  person  of  such  market-house.  But  no  market  or 
slaughter-house  shall  be  established  in  pursuance  of  this  section,  so 
as  to  interfere  with  any  rights,  powers,  or  privileges  enjoyed  within 
the  district  by  any  person,  chartered,  joint-stock,  or  incorporated 
company,  without  his  or  their  consent. 

2.  For  the  purpose  of  enabling  the  local  board  to  establish  markets 
in  manner  aforesaid,  or  to  regulate  *markets  already  established  p^g^ 
in  any  corporate  borough  before  the  constitution  of  a  local  ^ 
hoard  therein,  there  shall  be  incorporated  with  this  act  the  provisions 
of  the  Markets  and  Fairs  Clauses  Act,  1847  (10  &  11  Vict.  c.  14),  in  so 
far  as  the  same  relates  to  markets,  with  respect  to  the  holding  of  the 
market  or  fair  and  the  protection  thereof,  and  with  respect  to  the 
weighing  goods  and  carts,  and  with  respect  to  the  stallages,  rents, 
and  tolls,  and  with  respect  to  by-laws, — subject  to  this  proviso,  that 
all  tolls  leviable  by  the  local  board  in  pursuance  of  this  section  shall 
be  approved  of  by  one  of  Her  Majesty's  principal  secretaries  of  state. 

15.  Shortly  after  the  passing  of  this  act,  the  members  of  the  local 
board  opened  negotiations  with  the  company  for  a  lease  of  their  mar- 
Ket-buildings :  and  on  the  14th  of  December,  1860,  a  lease  was  exe- 
cuted between  '*The  Bridgnorth  Public  Buildings  and  Market  Com- 
pany, Limited"  of  the  one  part,  and  "The  Bridgnorth  Local  Board 
of  ilealth"  of  the  other  part,  whereby  the  company  let  to  the  said 
local  board  all  such  parts  of  the  said  buildings  and  markets  as  had 
been  appropriated  for  a  general  market,  a  butchers'  market,  and  china, 
glass,  and  crockery  stands,  and  all  the  stalls  and  fittings  in  the  said  mar- 
kets, and  also  the  use  for  the  purpose  of  a  corn-exchange  (but  for  no 


60        ELLIS  V.  MAYOR,  &o.,  OF  BRIDGNORTH.    T.  V.  1863. 

other  purpose)  on  every  Saturday  during  the  continuance  of  the  said 
demise,  of  such  part  of  the  said  buildings  as  had  been  appropriated  for 
an  assembly-room,  To  hold  the  same  (subject  to  an  indenture  of  mort- 
gage dated  the  17th  of  December,  1857,  made  between  the  company 
and  one  Cooper)  unto  the  said  local  board  from  the  14th  of  December, 
1860,  for  the  terra  of  twenty-one  years,  at  a  pepper-corn  rent :  and  it  was 
thereby  agreed  and  declared  that  the  said  buildings  and  premises  (ex- 
cept tlie  assembly-room)  should  be  used  as  a  market,  and  that  the  use 
♦fin   ^^  ^^^  *asaembly-room  for  a  corn-exchange  should  be  altogether 

•J  discretionary  with  the  said  local  board,  that,  until  used  as  a  corn- 
exchange,  the  said  company  might  use  the  said  room  as  they  mi;];ht  see 
fit ;  and  that  the  company  should  make  certain  fittings  and  alterations  for 
the  purpose  of  a  market  at  their  own  expense,  and  according  to  the  plan 
of  the  surveyor  of  the  local  board,  to  be  approved  of  by  two  justices  of 
the  peace  of  the  said  borough:  And  it  was  thereby  further  agreed  and 
declared  that  the  weighing-machine  already  in  the  said  High  Street 
should  be  used  for  the  weighing  of  carts  and  carriages,  and  the  said 
board  of  directors  should  find  and  procure  all  additional  implements 
whatsoever  (except  a  cjirt- weighing  apparatus)  which  might  be  required 
for  the  management  of  the  markets,  and  should  keep  such  additional 
implements  and  the  demised  premises  in  sufficient  repair,  and  defray 
all  expenses  attending  the  management  thereof;  and,  if  the  said 
directors  should  fail  so  to  do,  it  should  be  lawful  for  the  said  local 
board  to  find  and  provide  such  implements  and  to  keep  the  same  and 
the  said  demised  premises  in  such  sufficient  repair,  and  with  or  out 
of  the  stallages,  rents,  and  tolls  to  be  levied  and  received  by  them  in 
respect  of  the  said  premises,  to  pay  all  the  expenses  of  such  imple- 
ments and  repairs  and  all  necessary  expenses  attending  the  manage- 
ment of  the  said  premises:  And  the  local  board  in  and  by  the  said 
lease  covenanted  with  the  company  that  they  would,  so  far  as  they 
lawfully  could,  before  fixing  the  amount  of  stallage  rents  and  tolls 
leviable  by  the  said  local  board,  consult  and  advise  with  the  said  com- 
pany, and,  so  far  as  the  law  permitted,  would  allow  the  said  company 
or  airectors  thereof  to  join  with  them  in  settling  the  rates  and  amounts 
thereof  respectively,  and  would  cause  the  same  to  be  approved  of  by 
one  of  Her  Majesty's  principal  secretaries  of  state,  and  that  the 
♦621   *^^^^  ^^^^^  board  would,  so  far  as  they  legally  could,  use  their 

-•  best  endeavours  to  prevent  any  person  or  persons  otlier  than  a 
licensed  hawker  selling  or  exposing  for  sale  any  articles  in  respect  of 
which  tolls  were  authorized  to  be  taken  in  any  of  the  said  markets, 
in  any  place  other  than  in  the  said  markets,  or  in  his  or  their  own 
dwelling-place  or  shop :  But  it  was  provided  and  declared  that  they 
should  not  be  obliged  to  take  or  institute  any  proceedings  against 
any  person  or  persons  whomsoever,  unless  specially  requested  by 
the  board  of  directors  of  the  company  to  do  so :  And  the  company 
thereby  covenanted  with  the  local  board  that  they  would  save 
harmless  and  keep  indemnified  the  local  board  from  and  against 
all  actions,  suits,  proceedings,  claims,  demands,  costs,  charges,  losses, 
damages,  and  expenses  which  might  be  commenced  or  prosecuted 
against  them,  or  which  they  might  sustain,  be  at,  or  be  put  unto  by 
reason  or  on  account  of  the  local  board  holding  markets  in  the  said 
buildings  and  premises  as  aforesaid,  or  preventing  or  endeavouring  to 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)  62 

prevent  (at  the  special  request  of  the  board  of  directors  as  thereinbe- 
I  fore  mentioned)  any  person  or  persons  selling  or  exposing  for  sale 
I  articles  out  of  the  aforesaid  markets,  or  by  reason  or  on  account  of 
I  any  compensation  or  damages  or  which  might  be  payable  in  respect 
i  of  the  matters  connected  with  the  said  markets  or  the  holding 
thereof,  or  any  claim  for  such  compensation,  or  by  reason  or  on 
account  of  any  act,  matter,  or  thing  whatsoever  which  they  the 
local  board  should  do  under  or  by  virtue  of  the  said  lease  or  the 
powers  of  the  Local  Government  Act,  1858,  or  for  the  purpose  of 
carrying  into  effect  any  of  the  powers  or  provisions  of  the  said  lease 
or  the  said  act,  or  any  matter  or  thing  connected  therewith  :  And  it 
was  thereby  further  agreed  and  declared,  that,  in  case  the  said  local 
board  should  at  any  time  after  the  expiration  of  seven  'years  p^^o 
from  the  date  thereof,  and  during  the  continuance  of  the  said  ^ 
demise,  be  desirous  of  purchasing  the  whole  of  the  said  buildings  and 
markets  for  the  time  being  belonging  to  the  said  company,  they  should 
be  at  liberty  to  do  so  at  a  price  to  be  fixed  by  arbitration  ;  and  that 
DO  act  or  omission  by  or  on  the  part  of  the  said  J.  H.  Cooper  as  a 
director  of  the  said  company,  should  prejudice  or  in  any  wise  affect 
his  right  or  remedies  as  a  mortgagee.  The  said  lease  was  executed 
by  Cooper  as  a  deputy-chairman  of  the  said  board  of  directors,  and 
by  J.  L.  Whatmore,  mayor  of  the  said  borough,  as  chairman  of  the 
local  board  of  health,  under  their  respective  official  seals. 

16.  The  legal  estate  in  the  new  market-buildings  had  been, 
previously  to  the  execution  of  the  said  lease,  vested  in  the  said  J.  H. 
Cooper,  to  whom  the  company  had  conveyed  them  by  way  of  mortgage 
to  secure  a  sum  of  2500?.  and  interest;  and  there  is  now  due  to  him 
upwards  of  2800?.  on  such  security ;  and  the  legal  estate  has  continued 
vested  in  him  from  the  time  of  the  mortgage. 

17.  The  local  board  having  possession  of  the  new  buildings  under 
the  lease,  the  same  were  inspected  by  two  justices;  and  on  the  12th 
of  January,  1861,  a  certificate  was  signed  by  them  verifying  that  such 
new  buildings  so  leased  as  aforesaid  were  completed  and  fit  for  public 
use  as  a  market-place  for  the  said  town  of  Bridgnorth. 

18.  The  defendants  prepared  and  issued  a  table  of  tolls  to  be  taken 
in  the  new  market;  and  the  same  was,  on  the  4th  of  January,  1861, 
approved  by  one  of  Her  Majesty's  principal  secretaries  of  state. 

19.  The  defendants,  pursuant  to  the  acts  in  that  behalf,  had 
previously  published  in  the  Bridgnorth  Jourual  a  notice  that  the  local 
board  of  health  intended  to  apply  after  the  end  of  one  month  to  Her 
•Majesty's  principal  secretary  of  state  for  the  allowance  of  certain  ri^^A 
by-laws  for  regulating  the  use  of  the  market-place,  which  might   *■ 

be  inspected  at  all  reasonable  times  without  fee  or  reward,  and  a  copy 
thereof  furnished  to  any  person  applying  for  the  same  upon  the 
terms  stated  in  the  said  act,  and  also  a  copy  of  the  proposed  table 
of  tolls.  • 

20.  The  plaintiff's  attorney  had  previously,  on  behalf  of  certain 
persons  whom  he  did  not  name,  but  who,  he  stated,  were  entitled  to 
stalls  in  the  market,  given  notice  to  the  clerk  of  the  board  of  his 
intention  to  oppose  any  such  application,  and  that  he  should  apply  to 
the  Court  of  Chancery  for  an  injunction  to  restrain  the  removal  of  the 
market.    Immediately  after  the  publication  of  the  notice  in  the  local 


64        ELLIS  V.  MAYOR,  &c.,  OF  BRIDGNORTH.    T.  V.  1863. 

{)aper,  T.  "Whitefoot,  J.  M.  Glasse,  and  C.  J.  Lewis  delivered  to  the 
ocal  board  a  written  notice  to  the  effect  that,  feeling  themselves 
to  be  parties  aggrieved  by,  and  being  desirous  of  objecting  to, 
these  by-laws,  they  intended  to  oppose  their  allowance  by  Her 
Majesty's  principal  secretary  of  state,  and  to  request  permission  to 
attend  before  him,  by  themselves,  their  counsel,  attorney,  or  agent,  and 
that  the  nature  and  grounds  of  their  objections  to  such  by-laws  were, 
amongst  others^ — that  the  said  by-Jaws,  and  particularly  the  first  of 
them,  appointing  a  new  and  different  situation  for  the  market  to  be 
held  from  the  situation  in  which  it  had  been  held  from  timer  immemo- 
rial, thereby  attempting  to  remove  the  said  market  into  another  street, 
in  a  different  parish, — without  having  first  obtained  their  consent  and 
that  of  others  having  prescriptive  rights  of  stallage  in  the  street  where 
the  market  had  always  been  held,  as  well  as  the  rights,  powers,  and 
privileges  which  they  had  hitherto  enjpyed  within  the  district, — Were 
repugnant  to  the  laws  of  England  and  the  provisions  of  the  Local 
*651  Government  Act,  1858,  and  the  ^Markets  and  Fairs  Clauses  Act, 
^  1847,  and  that  the  said  local  board  had  exceeded  their  juris- 
diction in  making  such  by-laws,  as  well  for  the  above-stated  reasons 
as  for  other  reasons  appearing  on  the  face  thereof. 

21.  The  said  T.  Whitefoot,  J.  M.  Glasse,  and  C.  J.  Lewis  did  then 
and  still  do  occupy  houses  on  the  same  side  of  the  High  Street  as  the 
house  of  the  plaintiff;  and  all  claimed  rights  in  respect  of  their 
respective  houses  similar  to  those  claimed  by  the  plaintiff  in  respect 
of  his  house ;  and  they  afterwards  were  co-plaintiffs  with  him  in  the 
bill  in  Chancery  after  mentioned. 

22.  The  board  being  advised,  however,  by  their  counsel,  that  it  was 
unnecessary  to  lay  the  by-laws  before  the  secretary  of  state,  no  appli- 
cation was  made  in  pursuance  of  the  notice  for  his  sanction  of  the  by- 
laws ;  and  the  proposed  scale  of  tolls  was  alone  laid  before  and  sanc- 
tioned by  him  on  the  4th  of  January,  1861 :  and  the  market  was  aftrer- 
wards,  as  hereinafter  mentioned,  opened  in  the  new  buildings  by  the 
defendants,  without  the  sanction  of  the  secretary  of  state  being  obtained 
for  the  by-laws. 

23.  On  the  15th  of  January,  1861,  a  bill  in  Chancery  was  filed  by 
the  plaintiff  in  this  action,  together  with  nine  other  occupiers  of  houses 
in  the  said  High  Street,  against  the  defendants  in  this  action,  praying 
that  the  defendants,  acting  by  their  council,  and  their  servants  and 
agents,  might  be  restrained  by  the  order  and  injunction  of  that  court 
from  establishing  or  holding  a  market  in  the  said  new  market-build- 
ings, and  from  using  the  said  buildings  for  the  purposes  of  a  market, 
and  from  taking  any  tolls  in  respect  of  market-stalls  therein,  and  from 
otherwise  interfering  with  the  rights,  powers,  or  privileges  of  the  plain- 
^/./.-i   tiffs  in  that  *suit  as  occupiers  of  the  houses  occupied  by  them  in 

^^J   High  Street  aforesaid. 

24.  On  the  81st  of  January,  1861,  a  motion  was  made  before  Wood, 
V.  C. ;  but  his  honour  did  not  grant  the  injunction,  because  he  con- 
siderea  there  were  disputed  questions  of  law  and  fact  which  should  be 
tried  at  law :  and  he  ordered  the  motion  to  stand  over  for  the  plaintifib 
to  bring  such  action  as  they  might  be  advised. 

25.  On  the  8th  of  February,  1861,  the  corporation  of  Bridgnorth, 
by  the  town-council,  adopted  the  following  resolution, — "  Whereas,  by 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)         66 

* 

the  records  of  the  town,  it  appears  that  the  corporation  originally,  by 
the  title  of  The  Mayor,  Aldermen,  and  Burgesses,  have  exercised  their 
privileges  as  lords  of  the  manor  within  the  town  and  liberties  of 
Bridgnorth,  and  as  owners  of  the  soil  of  the  public  streets,  frontages, 
and  waste  grounds  and  public  buildings  throughout  the  borough  town 
of  Bridgnorth,  and  by  the  award  of  the  commissioners  for  the  enclo- 
sure of  the  common  of  Morfe  adjoining  the  town,  dated  in  the  year 
1808,  they  were  recognised  as  lords  of  the  manor  and  the  said  borough, 
and  that  from  time  immemorial  they  have  exercised  control  over  the 
market  and  fairs  of  the  said  borough :  And  whereas  buildings  have 
been  erected  at  the  south  end  of  High  Street,  about  the  centre  of  which 
street  the  prescriptive  markets  have  from  time  immemorial  been  and 
are  now  held  on  Saturday,  weekly,  under  the  control  and  regulation 
of  the  corporation :  And  whereas  such  buildings  have  been  erected  by 
private  individuals,  and  have  been  appropriated  and  adopted  for  a 
covered  market  and  other  public  purposes  at  an  estimated  cost  of 
upwards  of  8000^.,  and  have  been  leased  to  the  local  board  of  health 
under  certain  stipulations  which  will  ultimately  tend  to  the  general 
advantage  of  the  town  and  its  inhabitants,  by  rendering  *unne-    r^n» 
cessary  the  taking  up  loans  on  mortgage  of  the  district-rates  for    '- 
such  purpose ;  to  which  covered  market  the  council,  acting  for  the 
corporation,  have  been  invited  to  remove  the  present  market  from  the 
streets :  Considering,  therefore,  the  present  heavy  debt  on  the  town, 
and  the  great  convenience  it  would  afford  to  the  inhabitants  and  others 
frequenting  the  market,  and  the  absence  of  any  risk  to  the  public 
funds  of  the  town, — the  council,  acting  for  the  corporation,  deem  it 
expedient  that  the  market  already  established  in  High  Street,  on  the 
ground-floor  of  the  town-hall  there,  should  be  removed  from  High 
Street  and  the  east  end  of  Listley  Street :  The  mayor,  aldermen,  and 
burgesses,  acting  b^  the  council,  Kesolved,  that,  in  the  exercise  of  all 
rights  the  corporation,  as  lords  of  the  manor,  owners  of  the  soil  in  the 
public  streets,  and  lords  of  the  market  in  the  borough  of  Bridgnorth 
by  prescription,  the  prescription  markets  hitherto  held  on  Saturdays 
at  the  town-hall  and  in  High  Street  in  Bridgnorth  aforesaid,  shall  on 
Saturday  the  28d  of  February  instant  be  removed  from  thence  to  the 
covered  market-place  at  the  south  end  of  High  Street  and  east  end  of 
Listley  Street :  Also  that  the  said  market,  when  removed,  shall  be 
henceforth  held  at  the  said  covered  market-place  on  Saturdays,  and  so 
continued  from  time  to  time:  Also  that  the  public  notice  of  the  same 
BOW  produced  to  the  council,  and  read  over,  is  approved  on  behalf  of 
the  corporation,  and  it  is  agreed  shall  be  published  twice  in  the  Bridg- 
north Journal,  viz.,  on  the  9th  and  16th  of  the  present  month  of 
February,  and  circulated  largely  by  hand-bills  in  the  town,  and  that 
the  same  be  proclaimed  by  the  town-crier  on  Saturdav  the  9th  and 
16th  of  February  instant :  Also  that  notice  be  given  to  the  other  occu- 
piers of  stalls  on  market-davs  for  the  sale  of  merchandise  on  the 
ground-floor  of  the  town-hall,  that  the  *corporation  withdraw   r^egg 
their  consent  as  owners  of  the  same,  and  from  and  after  the  16th   ^ 
of  February  instant  the  occupation  of  such  ground-floor  of  the  town- 
hall  on  market-days  for  the  purpose  of  sale  of  merchandise  therein 
shall  cease :  Also  that  notice  be  given  to  the  other  occupiers  of  Btalla 


68        ELLIS  V.  MAYOR,  &c.,  OF  BRIDGNORTH.    T.  V.  1863. 

on  market-days  on  the  site  of  old  buildings  in  High  Street,  for  which 
they  pay  acknowledgments  to  the  borough  treasurer." 

26.  The  local  board  of  health  afterwards,  on  the  8th  of  February, 
1861,  came  to  the  following  resolution, — "That,  in  pursuance  of  the 
provisions  and  powers  vested  in  the  local  board  of  health  by  the  Local 
Government  Act,  1858,  and  the  clauses  of  the  acts  incorporated  therein, 
the  covered  market-place  provided  for  the  town  by  the  local  board  of 
health,  situate  at  the  south  end  of  High  Street  and  east  end  of  Listley 
Street  be  appropriated  for  holding  the  markets  on  Saturdays,  subject 
to  such  regulations  as  are  prescribed  by  the  said  Local  Government 
Act  and  acts  therein  incorporated ;  nevertheless  so  as  not  to  interfere 
with  any  rights  or  privileges  within  the  said  borough,  which  under 
the  60th  section  of  the  Local  Government  Act,  1858,  ought  not  to  be 
interfered  with  :  Also  that  the  local  board  of  health  do  fully  concur  in 
and  approve  of  the  proposed  form  of  public  notice  of  removal  of  the 
market  and  the  adoption  of  the  covered  market-place  provided  for  that 
purpose,  read  over  at  this  meeting,  and  agreed  that  the  same  be  pub- 
lished twice  in  the  borough  journal  and  by  hand-bills  distributed  at 
the  discretion  of  the  mayor,  and  that  all  other  matters  and  things  be 
done  which  are  authorized  by  the  Local  Government  Act,  1858,  for 
the  effectual  regulation  of  the  said  market  when  removed  as  aforesaid." 

27.  Pursuant  to  these  resolutions,  on  the  8th  of  February,  1861,  the 
town  council  and  local  board  issued  the  following  notice : — 

,^Q^  *"  Removal  of  the  market.     Borough  of  Bridgnorth. 

J  "  Notice  is  hereby  given,  that  the  mayor,  aldermen,  and  burgesses 
of  the  borough  of  Bridgnorth,  acting  by  the  council  of  the  said  borough 
in  pursuance  of  all  powers  vested  in  them  as  owners  of  the  markets 
of  Bridgnorth,  and  lords  of  the  manor,  and  as  local  board  of  health 
under  the  Local  Government  Act,  1858,  and  the  acts  incorporated 
therewith,  and  of  all  other  powers  (if  any)  vested  in  them,  have,  for  the 
purpose  of  holding  the  market  established  in  the  town  and  borough 
of  Bridgnorth,  and  heretofore  holden  under  the  town-hall  and  in  the 
High  Street  of  the  said  town,  provided  a  covered  market-place  situate  at 
the  south  end  of  High  Street  and  at  the  east  end  of  Listley  Street,  in 
the  said  town  and  borough,  and  duly  certified  by  two  justices  of  the 
peace  for  the  said  town  and  borough  as  complete  and  fit  for  the  use  of 
the  persons  resorting  thereto,  and  will  on  Saturday,  the  23d  instant, 
remove  the  market  so  established  and  holden  as  aforesaid  to  such 
covered  market-place,  and  such  market  will  be  then  opened,  held,  and 
established  for  the  public  use,  and  continued  on  that  and  every 
succeeding  Saturday  at  such  new  market-place,  but  so  as  not  to 
interfere  with  any  rights,  powers,  or  privileges  within  the  said  borough, 
which,  under  the  50th  section  of  the  Local  Government  Act,  1858, 
ought  not  to  be  interfered  with ;  and  that,  after  such  opening  of  the 
said  covered  market-place  for  such  use  as  aforesaid,  every  person  other 
than  a  licensed  hawker,  or  any  person  entitled  to  any  such  rights, 
powers,  or  privileges  as  aforesaid,  who  shall  sell  or  expose  for  sale  in 
any  place  within  the  said  town  and  borough  except  in  his  or  her  own 
dwelling-house  or  shop,  any  article  in  respect  of  which  tolls  are  from 
time  to  time  authorized  to  be  taken  in  the  said  new  market-place,  will 
*7m  ^®  liable  for  every  offence  to  a  penalty  not  exceeding  *405. :  And 

-I  furthef  take  notice,  that,  although  it  is  not  at  present  intended 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  70 

to  prevent  those  occupiers  of  houses  in  the  High  Street  of  the  said 
town  and  borough  who  have  of  late  years  been  in  the  habit  of  erect- 
ing on  market-days  standings  opposite  their  respective  houses  from 
erecting  the  same  for  the  display  and  sale  of  their  own  merchandise, 
other  persons  cannot  be  allowed  to  display  or  sell  their  merchandise 
in  such  standings.  JoHN  Smith,  Town-clerk  and 

clerk  to  the  local  board  of  health  " 

28.  After  the  said  notice,  the  local  board  opened  the  new  market- 
buildings  on  the  23d  of  February,  1861,  and  have  continued  to  keep 
them  open  on  market-days,  and  have  kept  a  market-clerk  in  attend- 
ance, and  have  received  through  him  tolls  and  rents  from  persons  using 
the  market,  and  have  applied  the  same  according  to  the  terms  of  the 
lease. 

29.  The  defendants,  except  as  hereinbefore  appears,  in  no  way  in- 
terrupted or  interfered  with  the  plaintiffs  stalls  or  standings  in  the 
High  Street;  and  the  persons  to  whom  he  let  them  continued  to  erect 
and  occupy  them  without  any  hindrance  or  obstruction  whatever,  on 
market-days,  down  to  the  time  of  the  commencement  of  the  present 
action  as  theretofore  they  had  done :  but  the  effect  of  opening  the  new 
market  was,  to  withdraw  from  the  old  market  many  of  the  public 
who  would  otherwise  have  attended  it. 

30.  ]Seither  the  company  nor  the  local  board  have /purchased  or 
taken  on  lease,  or  offered  to  purchase  or  take  on  lease,  the  supposed 
right  of  the  plaintiff';  nor  have  they  or  either  of  them  obtained  nor 
has  the  plaintiff  given  his  consent  to  the  establishing  of  the  aforesaid 
new  market. 

The  question  for  the  opinion  of  the  court  was,  whether  the  plaintiff 
had,  under  the  circumstances  *above  stated,  a  right  to  maintain   ^^^^ 
this  action  against  the  defendants  in  respect  of  any  one  or  more   •■  ' 
and  which  of  the  counts  in  the  declaration,  subject  to  amendment  as 
aforesaid. 

If  in  the  opinion  of  the  court  the  plaintiff  was  entitled  to  succeed  in 
the  action  upon  any  one  or  more  of  the  counts,  judgment  was  to  be 
entered  for  the  plaintiff  upon  such  count  or  counts  for  5Z.  55.  damages, 
together  with  costs,  and  for  the  defendants  upon  the  residue  of  such 
counts,  with  their  costs  in  respect  thereof:  but,  if  in  the  opinion  of 
the  court  the  defendants  were  entitled  to  succeed,  judgment  was  to  be 
entered  for  the  defendants,  with  costs. 

Huddlestony  Q.  0.  (with  whom  was  Gray)  for  the  plaintiff. — The 
corporation  were  not  justified  in  removing  the  market  and  thus 
depriving  the  plaintiff  of  the  privilege  he  was  entitled  to  enjoy  :  the 
franchise  will  be  forfeited  by  disuse  or  by  holding  it  otherwise  than 
in  the  accustomed  place :  Dixon  v.  Robinson,  8  Mod.  107.  The  mar- 
ket must  be  held  within  the  precincts  named  in  the  grant :  Curwen  v, 
Salkeld,  3  East  538.  In  The  King  v.  Starkey,  7  Ad.  &  E.  95  (B.  0. 
L.  R.  vol.  34),  2  N.  &  P.  169,  B.,  being  entitled  to  a  market  in  the 
borough  of  Keighley,  which  was  held  in  the  public  street  on  B.'s  soil, 
removed  it  to  another  site  in  Keighley,  which  site  he  had  demised, 
without  demising  the  franchise,  for  a  term  of  years.  Is  was  held  by 
the  whole  Court  of  King^s  Bench  that  the  removal  was  bad,  unless 
the  public  had  the  same  privilege  in  the  new  market  as  in  the  old ; 
and  therefore,  it  appearing  that  no  toll  bad  ever  been  taken  in  the 


71        ELLIS  V.  MAYOR,  &o.,  OF  BRIDGNORTH.    T.  V.  1863. 

old  market,  but  that  the  lease,  after  a  covenant  by  the  lessees  to  allow 
the  soil  to  be  used  solely  for  the  market,  empowered  them  to  impose 
rents  at  their  discretion  for  the  liberty  of  selling  in  the  market, — the 
*721   ^^"^^  ^®^^  *^^^  *^®  *removal  was  bad,  and  that  the  site  of  the 

^  old  market  on  the  King's  highway  might  be  used  on  market- 
days  as  it  was  before  the  removal.  [Erle,  0.  J. — That  case  decides 
no  more  than  that  no  nuisance  was  created  by  continuing  to  resort  to 
the  old  market.]  The  reason  assigned  is  that  the  removal  was  illegal. 
If  the  charter  under  which  this  market  in  High  Street  was  originally 
established  had  been  forthcoming,  it  would  have  been  competent  to 
the  owners  of  the  market  (in  the  absence  of  any  grant  of  a  special 
franchise  to  the  occupiers  of  the  adjoining  houses)  to  remove  it  to  any 
convenient  place  within  the  limits  defined  by  the  grant:  but,  the 
charter  not  being  forthcoming,  and  there  being  evidence  that  the 
market  has  never  within  living  memory  been  held  elsewhere  than  in 
the  High  Street,  it  will  be  presumed  that  the  grant  is  for  that  place 
only.  The  place  to  which  the  market  is  removed  is  not  the  soil  of 
the  corporation :  the  legal  estate  is  in  Cooper.  And  the  rights  given 
to  the  public  in  the  new  market  are  more  restricted  than  those  which 
they  enjoyed  io  the  old  one  ;  for,  tolls  are  imposed  there  upon  persons 
and  things  which  in  the  old  market  were  toH-free.  That  the  plaintift' 
would  have  a  right  of  action  for  obstructing  the  access  of  customers 
to  his  stall,  is  clear  from  Rose  v.  Groves,  6  M.  &  G.  613  (E.  C.  L.  R. 
vol.  44),  6  Scott  N.  R.  646.  [Williams,  J.— This  is  more  like  the 
case  of  a  man  claiming  a  pew  in  a  church  as  appurtenant  to  his  house. 
WiLLBS,  J. — Or  like  the  grantor  of  a  several  fishery  letting  off  all 
the  water.  Erlk,  C.  J.,  referred  to  the  opinions  of  the  judges  on  the 
Islington  Market  Bill,  12  M.  &  W.  20,(6)  and  also  to  the  Local 
Government  Act,  21  &  22  Vict.  c.  98,  a.  50,  which  empowers  the  local 
board  to  provide  market-places,  and  construct  market-houses  and 
other  conveniences  for  the  purpose  of  holding  markets.]  But  the 
section  goes  on  to  provide  that  "  no  market  shall  be  established  in 
*731   *P^^suance  of  this  section  so  as  to  interfere  with  any  rights, 

-'  powers,  or  privileges,  enjoyed  within  the  district  by  any  person, 
&c.,  without  his  or  their  consent."  Here  is  a  right  m  the  plaintiff 
which  the  new  market  does  materially  interfere  with.  [Williams, 
J.,  referred  to  The  King  v.  Cotterill,  1  B.  &  Aid.  67.  There  King 
Charles  the  Second,  by  charter,  granted  to  the  corporation  of  Walsall 
two  fairs  to  be  holden  annually  within  the  borough  and  foreign,  and 
confirmed  to  them  all  markets  which  they  then  held,  with  a  reserva- 
tion of  the  rights  of  the  lord  of  the  manor :  it  appeared  that  a  market 
had  been  holden  immemorially  in  the  High  Street  of  Walsall  until  a 
very  late  period,  when  the  corporation,  findine  it  inconvenient, 
removed  it  out  of  the  High  Street  to  another  and  more  convenient 
place  within  the  borough:  the  corporation  had  exercised  acts  of 
ownership  in  pulling  down  an  old  market-house  and  erecting  a  new 
one :  the  clerk  of  the  markets,  however,  had  been  appointed  by  the 
lord  of  the  manor,  but  he  did  not  receive  any  toll  from  the  persons 
frequenting  it.  The  defendant  having  been  indicted  for  a  naisance  in 
erecting  stalls  in  the  High  Street  after  the  removal  of  the  market,  the 
judge,  upon  the  trial,  left  it  to  the  jury  to  say  whether  the  corpora- 
tion were  owners  of  this  market,  adding,  that,  if  they  were,  the  right 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)  73 

of  removal  (to  a  convenient  place  within  the  borough)  was  incident 
to  the  grant.  The  jury  having  found  in  the  affirmative,  the  court 
refused  to  grant  a  new  trial.]  All  claims  which  are  founded  on 
custom  must  be  reasonable :  Tyson  v.  Smith,  9  Ad.  &  E.  406  (E.  C.  L. 
R.  vol.  36),  1  N.  &  P.  784 :  there  is  nothing  unreasonable  in  that 
which  the  plaintiff  here  claims  as  appurtenant  to  his  house. 

Phipson  (with  whom  was  Dowdeswell),  contri. — PrimS  facie  it  is 
competent  to  the  owner  of  a  market  *to  remove  it  to  a  more  con-  p,^^ 
venient  spot  witfiin  the  limits  of  the  grant  or  presumed  grant.  ^ 
This  is  clear  from  The  King  v.  Cotterill,  1  B.  &  Aid.  67.  And  in  Do 
Ratzen  v.  Lloyd,  5  Ad.  &  E.  456  (E.  C.  L.  R.  vol.  31),  6  N.  &  M.  776. 
in  case  by  the  lord  of  a  manor  for  disturbance  of  a  market,  it  was 
held,  that,  if  the  lord  prove  a  market  immemorially  holden  in  certain 
places  within  the  manor,  it  is  not  a  necessary  legal  inference  (no  grant 
being  produced)  that  the  market  was  granted  to  be  holden  in  those 
places  only ;  but  that  a  jury  may  presume,  from  circumstances,  that 
the  market  was  granted  to  be  holden  at  any  convenient  place  wi,thin 
the  manor.  Assuming,  however,  that  there  was  no  valid  removal  of 
the  market  here,  what  franchise  had  the  plaintiff  the  infringement  of 
which  he  complains  of?  He  could  only  have  it  by  virtue  of  some 
grant :  The  Mayor  of  Northampton  v.  Ward,  1  .Wils.  107 ;  Lockwood 
V,  Wood,  6  Q.  B.  31  (E.  0.  L.  R.  vol.  51).  [Williams,  J.— If  the 
owner  of  a  market  in  the  streets  of  a  town  covenanted  with  the  owners 
of  the  houses  adjoining  that  they  might  have  stalls  there  on  market- 
days  for  the  sale  of  their  commodities,  and  then  removed  the  market 
to  another  place,  would  not  that  be  derogating  from  his  grant  ?  It 
would  be  something  like  the  case  of  a  man  granting  estovers,  and 
then  grubbing  up  the  wood.]  A  man  cannot  have  a  stall  in  a  market 
as  appurtenant  to  his  house, — at  all  events,  in  the  manner  claimed 
here.  In  Jones  v.  Richard,  6  Ad.  &  E.  530  (E.  0.  L.  R.  vol.  33), 
tenant  of  B.,  prescribed  to  have  for  himself  and  his  tenants,  &c.,  occu- 
piers of  the  farm  of  B.  the  sole  and  exclusive  right  of  pasture  and  feeding 
of  sheep  and  lambs  on  L,y  as  to  the  said  farm  of  B.  belonging  and  apper- 
taining: it  was  held  that  this  did  not  entitle  him  to  take  in  the  sheep 
and  lambs  of  other  persons  to  pasture  on  L.,  for  that  by  the  terms  of 
the  grant  some  interest  in  the  pasture  was  reserved  to  the  lord,  and 
the  above  practice  was  prejudicial  to  such  *interest.  To  be  r^,^- 
good,  a  grant  must  be  certain  as  well  as  reasonable :  Comyns's  ^ 
Digest,  Orant  (E.  14) ;  Bacon's  Abridgment,  Grants  (H.) ;  Clayton  v. 
Corby,  5  Q.  B.  415  (E.  C.  L.  R.  vol.  48),  2  Gale  &  D.  174.  No  trace 
is  to  be  found  in  any  of  the  books  of  an  action  ever  having  been' 
brought  for  the  invasion  of  such  a  right  as  this :  it  cannot  be  claimed 
as  incident  to  land. 

Huddleston,  in  reply. — In  Rolle's  Abridgmetit,  Nusans  (G),  pi.  2,  it 
is  said :  "  Si  home  levie  un  market  ou  un  faire  d'estre  tonus  mesme  le 
jour  que  mon  faire  ou  market  est  tenus,  en  un  vill  que  &<^t  prochein  a 
men  faire  ou  market,  per  que  mon  faire  ou  market  est  empaier,  ceo 
est  un  nusans  al  mon  market  ou  faire,  car  le  grant  del  Roy  de  tiel 
&ires  ou  markets  est  touts  foits  ove  un  clause  que  ceo  ne  serra  al 
nusans  d'auter  faire  ou  market/'-— citing  the  Year  Books  22  H.  6,  fo. 
14  b,  11  H.  4,  fo.  47  b,  41  E.  8,  fo.  24  b.  And  see  Yard  v.  Ford. 
2  Wms.  Saund.  172,  and  the  authorities  cited  in  the  notes  thereto.    A 

0.  B.  N.  8.,  VOL.  XV.— 6 


75        ELLIb  V.  MAYOR,  &c.,  OF  BRIDGNORTH.    T.  V.  1863. 

Btall  in  a  market  held  as  this  market  was,  may  well  be  claimed  as 
appurtenant  to  a  house,  as  may  a  pew  in  a  church :  Stocks  v.  Booth,  1 
T.  R.  428;  Co.  Litt.  121  b.  In  Stephen's  Commentaries,  4th  edit. 
664,  treating  of  fairs  and  markets,  it  is  said,  that,  "when  any  of  the 
privileges  in  question  can  be  shown  to  exist,  the  party  entitled  to  it 
has  a  right  of  action,  not  only  against  those  who  refuse  or  evade  pay- 
ment of  toll  where  it  is  due,  but  against  those  also  who  disturb  his 
franchise  by  setting  up  a  new  fair,  market,  or  ferry  so  near  to  his  as 
to  diminish  his  custom," — citing  Rollers  Abridgment,  Nusans  (G.),  pi. 
2,  CornynsV  Digest,  Action  upon  the  Case  for  a  Nuisance  (A.)  8,  Blissett 
v.  Hart,  Willes  503,  De  Rutzen  v.  Lloyd,  5  Ad.  &  E.  456  (E.  0.  L.  R. 
vol.  31),  6  N.  &  M.  776,  Bridgland  v.  Shapter,  5  M.  &  W.  375.  Pirn  v. 
Curell,  6  M.  &  W.  234.  Cur.  adv.  vulL 

•7n  *  Williams,  J.,  delivered  the  judgment  of  the  court: — We 
-•  are  of  opinion  that  our  judgment  ought  to  be  for  the  plaintift*. 
He  claims  a  right  of  placing  a  stall  for  the  sale  of  goods  by  himself 
.or  his  licensees,  on  market-days,  in  front  of  his  shop  in  a  market  held 
tin  the  High  Street  of  the  borough  of  Bridgnorth,  as  appurtenant  to 
•hi«  house  situate  in  that  street :  and  his  complaint  is,  that  he  has  been 
.disturbed  in  the  enjoyment  of  this  right  by  the  defendants  holding  on 
market-days  another  market  near  the  market  in  which  the  right  is  so 
claimed  by  the  plaintiff. 

The  facts  are,  that,  from  time  immemorial  till  lately,  a  weekly  mar- 
ket has  been  held  in  the  High  Street  of  Bridgnorth.  The  market 
belongs  to  the  corporation  of  Bridgnorth,  who  are  also  lords  of  the 
manor  in  which  the  borough  is  situate.  The  plaintiff  is  the  owner 
and  occupier  of  a  house  in  the  High  Street;  and  he  and  the  previous 
owners  and  occupiers  of  this  house,  as  well  as  several  other  occupiers 
of  houses  in  the  High  Street,  have  from  time  immemorial  erected  on 
market-days  stalls  opposite  their  respective  houses,  and  have  exposed 
thereon  goods  for  sale  in  the  market,  or  let  the  stalls  for  hire  to  other 
»per8ons  who  have  done  so:  and  no  payment  has  ever  been  made  or 
claimed  by  the  corporation  for  stallage  or  for  tolls  of  things  sold  at 
such  stalls,  though  they  took  tolls  of  similar  produce  exposed  in  the 
•market  elsewhere. 

The  defendants  have  moved  the  market  to  another  place  within  the 
•town,  at  some  small  distance  from  the  High  Street,  which  would  be 
necessarily  injurious  to  the  old  market  if  it  was  continued,  and  to  the 
right  claimed  by  the  plaintiff  therein. 

But  the  demand  for  compensation  in  respect  of  this  injury  is  re- 
sisted,— first,  on  the  ground  that  the  moving  of  the  market  is  justifi- 
able under  the  Public  Health  Act,  1848,  11  &  12  Vict.  c.  63,  and  the 
,y^.  Local  ♦Government  Act,  1858,  21  &  22  Vict.  c.  98, — secondly, 
-'  that  there  is  no  legal  foundation  for  any  right  of  plaintiff  which 
is  interfered  with  by  the  removal  of  the  market  from  the  High  Street 
to  its  new  site,  and  no  cause  of  action  in  respect  of  such  removal. 

It  appears  t<^  us,  that,  inasmuch  as  the  power  as  to  providing  mar- 
ket-places conferred  on  the  local  board  by  s.  50  of  the  Local  Govern- 
ment Act,  1858,  is  expressly  qualified  by  the  provision  that  no  mar- 
ket shall  be  established  so  as  to  interfere  with  any  rights  enjoyed  by 
any  person  without  his  consent,  the  two  questions  raised  on  the  part 
>)f  the  defendants  may  be  narrowed  to  the  single  one,  whether  tbe 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  8.)         77 

plaintiff  has  shown  that  the  removal  of  the  market  was  an  unlawful 
interference  with  any  right  then  enjoyed  by  him. 

No  authority  in  any  way  referring  to  such  a  right  was  cited  by 
counsel  on  the  argument  of  this  case ;  nor  has  the  court  been  able  to 
discover  any.  It  is  therefore  necessary  to  consider  on  principle 
whether  such  a  right  is  maintainable. 

On  the  part  of  the  plaintiff,  the  argument  rests  on  the  long-estab- 
lished rule,  as  mentioned  by  Lord  Hobart  in  Slade  r.  Drake,  Hob, 
295,  that  ''antiquity  of  time  fortifies  all  titles,  and  supposeth  the  best 
beginning  the  law  can  give  them."  And  it  is  urged  that  the  imme- 
morial enjoyment  in  the  present  case  may  well  have  had  a  legal 
origin,  on  the  supposition  either  that  at'  some  former  period  the  then 
owners  of  the  market  granted  to  the  respective  owners  of  the  houses 
abutting  on  the  High  Street  and  their  heirs,  as  a  right  annexed  to 
their  estate  in  the  houses,  that  the  occupiers  thereof  might  on  market- 
days  respectively  erect  stalls  in  the  Market  Street  opposite  their 
houses,  for  the  exposure  of  goods,  free  of  all  toll  and  stallage ;  or  that 
the  original  grant  of  the  franchise  from  the  Grown  to  the  corporation 
was  expressed  to  be  on  the  terms  or  •condition  that  the  owners  |-^,-g 
of  those  houses  should  enjoy  that  right.  ^ 

We  think  these  arguments  are  well  founded,  and  ought  to  prevail. 

This  right  was  probably  conferred  in  consideration  that  the  holding 
of  the  market  must  necessarily  diminish  on  market-days  the  trade 
and  custom  of  the  shops  kept  in  such  houses,  and  the  shopkeepers 
were  therefore  privileged  to  advance,  as  it  were,  their  shops  into  the 
market  itself,  by  having  stalls  in  the  street  commensurate  with  the 
fronts  of  their  houses.  And  in  this  point  of  view  the  enjoyment  of 
the  stalls  by  them  and  those  licensed  by  them  appears  to  us  sufficiently 
connected  with  the  enjoyment  of  the  houses  to  satisfy  the  unquestion- 
able rule  of  law, — which  was  acted  on  by  this  court  in  Ackroyd  v. 
Smith,  10  0.  B.  164  (E.  0.  L.  R.  vol.  70),  and  Bailey  v.  Stephens,  12 
C.  B.  N.  S.  91  (E.  C.  L.  R.  vol.  104),— that  no  right  can  be  annexed 
to  a  house  or  land  which  is  unconnected  with  the  enjoyment  or  occu- 
pation thereof. 

On  the  part  of  the  defendants,  besides  denying  that  any  such  right 
could  have  a  legal  existence^  it  was  urged,  that,  even  if  the  right  ex- 
isted in  respect  of  erecting  such  stalls  in  the  High  Street  as  long  as 
the  market  was  held  there,  yet  that  they,  as  owners  of  the  market, 
might  legallv  remove  it  to  any  new  place  within  the  manor,  and  that, 
in  respect  of  such  new  site,  the  right  was  annihilated.  The  cases  of 
Curwen  v.  Salkeld,  8  East  538,  The  King  v.  Cotterill,  1  B.  &  Aid.  67, 
and  De  Rutzen  v.  Lloyd,  5  Ad.  k  E.  456  (E.  L.  C.  R.  vol.  81),  6  N.  & 
M.  776,  certainly  justify  the  proposition,  that,  if  nothing  further 
appeared  in  the  case,  the  presumption  would  be  that  the  original  grant 
from  the  Crown  was  for  the  holding  of  the  market  at  any  convenient 
place  in  the  manor,  and  that,  accordingly,  the  owners  of  the  franchise 
in  the  present  case  might  change  the  site  of  it,  as  they  have  in  fact 
done. 

*Bnt  the  answer  to  this  argument  is,  that  if  the  riffht  of  the  r^t^g 
plaintiff  had  its  origin,  as  suggested,  in  a  grant  from  the  owners  ^ 
of  the  market,  their  successors  cannot  be  allowed  to  derogate  from 
that  grant  by  changing  the  site  of  the  markei-plaoe :  or,  if  the  right 


79        ELLIS  V,  MAYOR,  Ac,  OF  BRIDGNORTH.    T.  V.  1863. 

had  its  origin,  as  further  supposed,  in  a  condition  contained  in  the 
grant  by  the  Crown  of  the  franchise,  the  terms  of  that  condition  would 
in  effect  amount  to  a  grant  of  a  market  to  be  held  in  the  Uigh  Street 
and  in  no  other  place,  and  consequently  the  removal  of  it  by  the  de- 
fendants to  the  new  site  would  be  illegal.  If  this  be  so,  then,  accord- 
ing to  the  case  of  The  King  v,  Starkey,  7  Ad.  &  E.  95  (E.  C.  L.  R. 
vol.  84),  2  N.  &  P.  169,  the  High  Street  continues  to  be,  in  point  of 
law,  the  site  of  the  market,  and  the  plaintiff  may  maintain  this  action 
for  setting  up  a  new  market  to  the  injury  of  his  right  in  the  ancient 
market. 

Our  judgment,  for  these  reasons,  must  be  for  the  plaintiff. 

Judgment  tor  the  plaintiff. 


BERKLEY  v.  SHAFTO.    June  23. 

By  deed  of  1857,  A.,  who  was  tenant  for  life  under  the  will  of  one  S.,  ooaveyed  (under  a 
power)  land  to  B.  in  fee,  with  a  reseryation  ont  of  the  grant  of  "  all  and  erery  the  aeam  or  eeama 
of  eoal  and  other  minerals  under  the  said  hereditaments  hereby  granted,  with  power  to  win, 
woriK,  and  carry  away  the  same  under  or  over  any  part  of  the  said  hereditaments  and  premises, 
— the  said  A.,  or  the  person  or  persons  for  the  time  being  entitled  thereto,  and  his  or  their 
assigns,  paying  to  the  said  B.,  his  heirs  and  assigns,  compensation  for  any  damage  which  he 
or  they  may  sustain  thereby,"  and  a  corenant  by  A.  that  he  had  not  done  or  permitted  any  aoi 
or  thing  whereby  the  premises  or  the  title  thereto  should  or  might  be  encumbered  or  prejudiciHlly 
affected.  And  B.  corenanted,  for  himself,  his  heirs  and  assigns,  **  that  the  said  hereditament* 
and  premises  hereby  conyeyed,  or  any  buildingt  now  or  hereafter  to  be  erected  thereon,  shall  not 
at  any  time  hereafter  be  used  for  the  manufacture,  sale,  or  storing  of  any  combustible  matter, 
or  for  the  purpose  of  any  offensire  trade  or  business,  the  side  walls  to  be  jiot  less  than  18  feet 
high,  and  to  be  in  uniformity  with  the  street,"  Ac. 

In  1844,  S.,  A.'s  testator,  had  demised  to  C.  and  D.  "  a  colliery  and  coal-mines  and  seams  of 
eoal,  as  well  opened  as  not  opened"  (including  and  comprising  all  seams  of  coal  under  the  land 
conveyed  by  the  deed  of  1857),  with  full  power  to  the  lessees,  their  executors,  administrators, 
and  assigns,  to  win,  workj  and  carry  away  the  said  seams  of  coal  for  a  term  of  years  not  yet 
expired. 

The  plaintiff  became  posseised  of  the  land  comprised  in  the  deed  of  1S57|  and  built  four  honsea 
thereon :  and,  whilst  he  was  so  possessed,  the  houses  were  injured  by  the  working  and  carrying 
away  by  the  assignees  under  the  lease  of  1844  of  the  seams  of  coal  thereunder.  He  thereupon 
brought  an  action  against  A.,  claiming  compensation  under  the  reservation  contained  in  the 
deed  of  1857. 

The  defendant  (A.)  pleaded  seventhly, — as  to  so  much  of  the  count  aa  related  to  the  damaga 
and  iqjury  done  to  the  part  of  the  said  piece  of  ground  on  which  the  said  houses  were  built, 
and  to  the  said  houses,  and  to  the  compensation  claimed  by  the  plaintiff  in  respect  thereof, — 
that  such  damages  and  ii^ury  were  occasioned  by  reason  of  the  said  housei  having  been  erected 
thereon : — 

Held,  that  the  compensation  clause  in  the  deed  of  1857  extended  to  houses  thereafter  built 
upon  the  land,  and  consequently  that  the  seventh  plea  was  no  answer  to  the  declaration. 

The  declaration  stated  that  a  deed  was  made  by  and  between  the 
defendant,  being  the  party  thereto  of  the  second  part^  and  the  other 
*801  P^^^^^^  therein  mentioned  *and  which  said  deed  was  signed  and 
^  sealed  by  the  defendant,  and  his  consent  therein  contained  and 
expressed  was  attested  by  two  credible  witnesses,  and  was  and  is  of 
the  tenor  and  in  the  words  and  figures  following,  that  is  to  say, — 
"  This  indenture,  made  the  ISth  of  February,  1857,  between  John 
Eden,  of,  &c.,  and  tha  B^y.  J.  D.  Shafto,  of,  &g^  of  the  first  part,  R 
D.  Sbafto^  of,  &Q.y  of  the.  second  part^  and  R.  Robinson,  oi  &c.,  of  the 
third  p^t:  Wb^ce^i;^  E«  D.  Shafto^  la(^  of  Wbitworth  Park,  by  his 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  80 


will  dated  the  21st  of  October,  1842,  gave  and  devised  the  heredita- 
ments and  premises  hereinafter  conveyed  (inter  alia)  to  the  said  John 
Eden  (then  and  therein  called  John  Methold)  and  the  said  J.  D.  Shafto 
and  their  heirs,  to  the  uses  and  upon  the  trasts  thereinafter  declared, 
viz.  to  the  use  that  his  wife,  C.  D.  Shafto,  should  receive  thereout  a 
rent-charge  or  annuity  of  1300/. ;  and,  subject  thereto,  to  the  use  of 
the  said  John  Eden  and  J.  D.  Shafto,  their  executors,  administrators, 
and  assigns,  for  the  term  of  2000  years,  upon  the  trusts  thereinafter 
declared,  and  which  in  no  way  affect  these  presents;  and,  from  and 
immediately  after  the  determination  thereof,  to  the  use  of  the  said 
•R.  D.  Shafto,  party  hereto,  and  his  assigns,  for  his  natural  life,  r^r.^ 
without  impeachment  for  waste;  with  remainder  to  the  use  of  '- 
trustees  therein  described,  their  heirs  and  assigns,  during  the  life  of 
the  said  R.  D.  Shafto,  upon  trust  to  preserve  contingent  remainders ; 
with  remainder  to  the  use  of  the  first  and  every  other  the  sons  of  the 
said  R.  D.  Shafto  lawfully  to  be  begotten,  one  after  another,  as  they 
should  be  in  priority  of  birth,  and  the  heirs  of  their  bodies  respect- 
ively issuing,  with  divers  remainders  over:  And  the  said  testator  by 
his  said  will  declared  that  it  should  be  lawful  for  the  said  John  Eden 
(therein  called  John  Methold)  and  J.  D.  Shafto,  with  the  consent  and 
approbation  of  such  of  his  children  or  grandchildren,  or  other  the 
person  who  by  virtue  of  the  uses  and  limitations  therein  contained 
and  hereinbefore  partly  recited  should  be  entitled  to  the  first  estate 
of  freehold  or  inheritance  in  possession  of  and  in  the  manors,  heredi- 
taments, and  premises  hereinbefore  devised,  or  any  part  thereof  re- 
spectively,— such  child  or  children,  grandchild  or  grandchildren,  or 
other  person  as  aforesaid,  being  then  of  the  full  age  of  twenty-one 
years, — such  consent  or  approbation  to  be  signified  by  any  writing 
or  writings  under  the  hand  and  seal  of  the  person  or  persons  whose 
consent  was  thereby  made  requisite,  and  to  be  attested  by  two  or 
more  credible  witnesses^  absolutely  to  sell  and  dispose  of  all  or  any 
part  of  the  said  manors,  hereditaments,  and  premises  (other  than  and 
excepting  his  capital  messuage  at  Whitworth  aforesaid,  with  the  ap- 
purtenances thereunto  belonging,  and  the  lands  and  grounds  usually 
held  and  enjoyed  by  him  the  said  testator  along  with  the  same  capital 
messuage),  unto  any  person  or  persons  whomsoever,  either  together 
or  in  parcels,  for  such  price  or  prices  as  to  the  said  John  Eden  (there- 
in called  John  Methold)  and  J.  D.  Shafto  should  seem  *reason-  r^^^ 
able,  and  upon  payment  of  the  purchase-money  to  sign  and  give  '■ 
proper  receipts  for  the  same,  which  should  be  sufficient  discharges  to 
the  purchaser  or  purchasers  for  the  money  therein  expressed  to  have 
been  received,  and  such  purchaser  or  purchasers  shall  not  afterwards 
be  answerable  or  accountable  for  any  loss,  misapplication,  or  non-ap- 
plication thereof:  And  it  was  declared  that  the  premises  so  sold 
should  be  for  ever  freed  and  discharged  from  all  and  every  the  uses, 
estates,  trusts,  limitations,  powers,  and  provisoes  therein  declared : 
And  whereas  the  said  testator  died  on  or  about  the  19th  of  January, 
1848,  leaving  the  said  R,  D.  Shafto  (party  hereto),  his  eldest  son,  and 
tenant-for-life  of  the  manors,  hereditaments,  and  premises  devised  by 
the  said  recited  will,  and  who  has  long  since  attained  the  age  of  twen- 
ty-one years :  And  whereas  the  said  John  Eden  has  long  since  the 
death  of  the  said  testator,  by  Royal  license  and  autho  rity,  assumed 


8a  BERKLEY  v.  SHAFTQ.    T.  V.  1863. 

the  surname  of  Eden  in  lieu  of  the  surname  of  Methold :  And  where- 
as the  said  John  Eden  and  J.  D.  Shaflo  contracted  and  agreed  with 
the  said  E.  Bobinson  for  the  absolute  sale  to  him  of  the  piece  or  par- 
cel of  ground  hereinafter  more  particularly  described  and  intended 
to  be  hereby  conveyed,  and  the  fee-simple  thereof  in  possession,  for 
the  price  or  sum  of  225Z.,  which  said  piece  or  parcel  of  ground  forms 
portion  of  the  lands  and  hereditaments  devised  by  the  said  recited 
will  of  the  said  R.  E.  D.  Shafto,  but  no  portion  of  the  lands  and 
grounds  usually  held  and  occupied  by  the  said  R.  E.  D.  Shafto  along 
with  the  said  capital  messuage  at  Whitworth  aforesaid:  Now, 
this  indenture  witnesseth,  that,  in  pursuance  of  the  said  agree- 
ment, and  in  consideration  of  the  sum  of  225i  sterling  this  day 
paid  by  the  said  R.  Robinson  to  the  said  John  Eden  and  J. 
D.  Shafto,  the  receipt  whereof  is  hereby  by  them  respectively 
*831   **^cknowledged,  they  the  said  John  Eden  and  J.  D.  Shafto,  in 

-'  exercise  of  the  power  and  authority  so  given  to  them  by  the 
said  recited  will  as  aforesaid,  do  and  each  of  them  doth  (with  the 
consent  and  approbation  of  the  said  R.  D.  Shaflo,  testified  by  his 
being  party  to  and  signing  and  sealing  these  presents,  such  signature 
and  sealing  being  attested  by  two  witnesses)  grant,  release,  and  convey 
unto  the  said  R.  Robinson  and  his  heirs  all  that  piece  or  parcel  of 
ground  situate  at  or  near  to  the  village  of  Spennymoor,  in  the  county 
of  Durham,  containing  in  length  from  east  to  west  330^feet  or  there- 
abouts, and  in  breadth  from  north  to  south  42  feet  or  thereabouts,  and 
containing  in  the  whole  1540  square  yards  or  thereabouts,  and  which 
said  piece  or  parcel  of  ground  is  bounded  on  or  towards  the  east  and 
north  by  land  belonging  to  the  vendors,  on  or  towards  the  west  by' 
land  belonging  to  G.  Beedall,  and  on  or  towards  the  south  by  George 
Street,  together  with  the  rights,  members,  and  appurtenances  there- 
unto belonging,  &c. ;  except  and  always  reserved  out  of  these  presents 
all  and  every  the  seam  or  seams  of  coal  and  other  minerals  under  the 
said  hereditaments  hereby  granted,  with  power  to  win,  work,  and 
carry  away  the  same  under  or  over  any  part  of  the  said  hereditaments 
and  premises, — the  said  R.  D.  Shafto,  or  the  person  or  persons  for  the 
time  being  entitled  thereto,  and  his  and  their  assigns,  paying  to  the 
said  R.  Robinson,  his  heirs  and  assigns,  reasonable  compensation  for 
any  damage  which  he  or  they  may  sustain  thereby, — To  have  and  to 
hold  the  same  unto  the  said  R.  Robinson,  his  heirs  and  assigns,  to  the 
use  of  the  said  R.  Robinson,  his  heirs  and  assigns,  for  ever :  And  the 
said  R.  Robinson  hereby  declares  that  no  woman  who  shall  become 
his  widow  shall  be  entitled  to  dower  out  of  the  said  hereditaments  and 
♦841    pr®°^^3^8  •  -^^^  e2ko\i  of  them  the  said  John  Eden  and  ♦J.  D. 

J  Shafto,  so  far  only  as  relates  to  his  own  acts  and  deeds,  hereby 
for  himself,  his  heirs,  executors,  and  administrators,  covenants  with 
the  saidR.  Robinson,  his  heirs  and  assigns,  that  they  respectively  have 
not  done  or  permitted  any  act  or  thing  whatsoever  whereby  the  said 
hereditaments  and  premises  intended  to  be  hereby  conveyed,  or  the 
title  thereto,  can,  shall,  or  maybe  encumbered  or  prejudicially  affected 
in  any  way  howsoever :  And  the  said  R.  D.  Shafto  hereby,  for  himself, 
his  heirS)  executors,  and  administrators,  covenants  with  the  said 
R.  Robinson,  his  heirs  and  assigns,  that,  notwithstatiding  any  act  done 
by  him  the  said  R.  D.  Shafto,  or  the  said  R.  E.  D.  Shafto,  deceased, 


COMMON  BENCH  KEPORTS.    (15  J.  SCOTT.    N.  S.)         84 

to  tbe  contrary,  tbey  the  said  John  Eden  and  J.  D.  Shafto,  or  one  of 
them,  now  have  in  themselves,  or  has  in  himself,  good  right,  full  power, 
and  lawful  and  absolute  authority  by  these  presents  to  grant  and 
release  the  said  hereditaments  and  premises  to  the  uses  and  in  the 
manner  aforesaid,  according  to  the  true  intent  and  meaning  of  these 
presents  [Covenants  for  further   assurance,  for   production   of  title 
deeds,  Ac] :  And  that  free  from  all  encumbrances  whatsoever  created 
or  occasioned  by  him  the  said  R.  D.  Shafto  or  any  of  his  ancestors  or 
testators,  or  any  other  person  whomsoever  rightfully  claiming  under 
him  or  them :  And  the  said  R.  Robinson,  for  himself,  his  heirs  and 
assigns,  hereby  covenants  with  the  said  R.  D.  Shafto  and  his  assigns 
and  tTie  person  or  persons  who  for  the  time  being  shall  be  entitled 
under  the  limitations  contained  in  the  hereinbefore  in  part  recited  will 
of  the  said  R.D.  Shafto  to  an  estate  of  freehold  in  the  said  Whitworth 
estate,  and  his  and  their  assigns,  that  the  said  hereditaments  and 
premises  hereby  conveyed,  or  any  buildings  now  or  hereafter  to  be 
erected  thereon,  shall  not  at  any  time  hereafter  be  used  for  the  manu- 
facture, sale,  or  storing  of  any  combustible  *matter,  or  for  the   r^^g- 
purposes  of  any  offensive  trade  or  business,  the  side  walls  to  be   '- 
not  less  than  than  18  feet  high,  and  to  be  in  uniformity  with  the 
street,  the  windows  to  be  4  feet  wide  and  5  feet  6  inches  in  height; 
and  further,  that  he  or  they  will  as  soon  as  conveniently  may  be  here- 
after make  and  for  ever  hereafter  maintain  on  the  piece  or  parcel  of 
ground  intended  to  be  hereby  conveyed  in  the  front  of  the  dwelling- 
house  or  shop  now  or  hereafter  to  be  built  thereon,  a  footway  or 
pathway  to  be  open  at  all  times  for  the  passage  of  all  persons  on  foot, 
such  footway  or  pathway  to  be  of  the  width  of  4  feet  at  the  least,  and 
will  at  his  or  their  own  expense  cause  the  same  to  be  flagged  and  keep 
such  flagging  at  all  times  hereafter  in  good  repair  ana  free  from  all 
obstructions  whatsoever,  which  said  pathway  shall  be  made  uniformly 
to  suit  the  general  fall  in  the  street,  and  will  pay  his  proportion  of 
the  costs  and  expenses  of  draining,  sweeping,  or  otherwise  cleaning 
the  street  or  streets,  or  intended  street  or  streets  in  which  the  premises 
hereby  conveyed,  and  erections  now  or  hereafter  to  be  built  thereon, 
shall  be  situate,  and  shall  erect  boundary  walls  not  less  than  7  feet  in 
height,  and  shall  not  put  out  windows  to  overlook  the  adjoining 
properties.    In  witness,"  &c.    Averment,  that  after  the  making  of  the 
said  deed,  and  while  the  estate  and  interest  thereby  conveyed  to  the 
said  R.  Robinson  continued  to  be  and  remained  vested  in  him  by  virtue 
of  the  said  deed,  certain  messuages  and  dwelling-houses,  to  wit,  Nos. 
101,  102,  103,  and  104,  George  Street,  Spennymoor,  were  erected  and 
built  on  the  said  piece  of  ground  so  conveyed  to  him  ;  and  afterwards 
and  while  the  said  estate  and  interest  so  continued  to  be  and  remained 
vested  in  him  by  virtue  of  the  said  deed,  he,  by  deed  between  him 
and  W.  Oliver,  dated  the  i2th  of  May,  1857,  granted,  released,  and 
♦conveyed  unto  the  said  W.  Oliver  and  his  heirs,  all  the  said    p^^gg 
four  messuages  and  dwelling-houses  so  as  aforesaid  erected   '- 
upon  the  said  piece  of  ground,  together  with  all  and  singular  his 
estate,  right,  title,  &c.,  of,  in,  or  to  the  same,  to  hold  the  same  and  all 
the  premises  thereinbefore  in  the  said  deed  described  and  expressed 
to  be  thereby  conveyed,  with  their  appurtenances,  unto  and  to  the  use 
of  the  said  W.  Oliver,  his  heirs  and  assigns,  for  ever :  That  afterwards, 


86  BERKLEY  v.  SHAFTO.    T.  V.  1863. 

and  while  the  same  estate  and  interest  conveyed  by  the  said  last- 
mentioned  deed  to  the  said  W.  Oliver  continued  to  be  and  remained 
vested  in  him  by  virtue  of  the  premises,  the  said  W.  Oliver,  by  deed 
between  him  and  the  plaintiff,  dated  the  13th  of  May,  1857,  granted, 
released,  and  conveyed  the  said  messuages  and  dwelling-houses,  with 
the  yards,  out-oflBces,  and  conveniences  thereto  belonging,  to  the  plain- 
tiff' and  his  heirs,  to  hold  the  same  to  the  use  of  the  plaintiiF,  his  heirs 
and  assigns,  for  ever:  That,  before  the  making  of  the  herein  first 
named  and  above  set  forth  deed,  the  said  R.  E.  D.  Shafto,  by  deed 
dated  the  12th  of  September,  1844,  between  him  of  the  one  part  and 
T.  Brown  and  W.  C.  Gillan  of  the  other  part,  granted,  demised,  and 
leased  unto  the  said  T.  Brown  and  W.  C.  Gillan,  their  executors, 
administrators,  and  assigns,  a  colliery  and  coal-mines  and  seams  of 
coal,  as  well  opened  as  not  opened,  including  and  comprising  all  seams 
of  coal  extending,  reaching,  or  being  under  the  said  piece  of  ground 
and  the  said  four  messuages  and  dwelling-houses  so  as  aforesaid  con- 
veyed to  the  plaintiff',  with  full  power  to  the  said  T.Brown  and  W. C. 
Gillan,  their  executors,  administrators,  and  assigns,  to  win,  work,  and 
carry  away  the  said  seams  of  coal,  for  a  term'  of  years  not  yet  expired : 
That,  after  the  making  of  the  said  last  deed  of  conveyance  by  the  said 
♦ft"!    ^*  Oliver  to  him  the  plaintiff*,  and  while  the  same  *estate  and 
'■^   interest  thereby  conveyed  to  him  the  plaintiff*  of  and  in  the  said 
messuages  and  dwelling-houses  continued  to  be  vested  in   him  the 
plaintiff  in  possession  by  virtue  of  the  said  deed,  and  before  this 
action,  the   said   messuages  and   dwelling-houses  were   injured   and 
damaged,  and  the  plain  tiff*  sustained  damage  thereto,  by  [such]  winning, 
worlcing,   and  carrying   away,  to  unt,  by  the  said  lessees  of  the   said 
R,  E,  D.  Shafto,  or  his  assigns  (a)  of  seams  and  parts  of  seams  of  coal, 
which  seams  extended,  reached,  and  were  under  the  said  piece  of 
ground  above  mentioned,  and  which  sustained  and  supported  the  said 
piece  of  ground  and  the  said  messuages  and  dwelling-houses  :  That, 
by  such  winning,  working,  and  carrying  away,  the  foundations  of  the 
said  messuages  and  dwelling-houses  were  weakened,  cracked,  injured, 
and  oaused  to  subside  and  swaj^^,  and  to  be  dilapidated  and  less  fit  for 
habitation  and  uninhabitable,  and   the  plaintiff  lost  the  rents  and 
profits  which  otherwise  he  would  have  derived  from  the  said  messuages 
and  dwelling-houses,  and  the  same  have,  by  reason  of  the  premises, 
been  diminished  in  value  and  rendered  worthless,  whereof  the  defend- 
ant  had  notice:   And  that,  although  plaintiff^  had  done  all  things, 
and  all  things  had  happened,  and  all  times  had  elapsed,  to  entitle 
the  plaintiff'  to  maintain  this  action,  and  to  be  compensated  by  the 
defendant  for  the  damage  aforesaid :  Yet  that  no  compensation  had 
been  paid  to  the  plaintiff*  for  the  said  damages. 

The  defendant  demurred  to  this  declaration ;  the  ground  of  demurrer 
stated  in  the  margin  being,  **  that  the  defendant  is  not  liable  under  the 
covenant  to  pay  compensation  for  the  damage  alleged  in  the  declara- 
tion; and  that  the  defendant  is  not  shown  in  the  declaration  to  have 
done  such  damage."    Joinder. 

*881       *Sixth  plea,  to  the  first  count,  so  far  as  it  relates  to  the  cause 
■■  of  action  in  the  said  first  count  mentioned  in  respect  to  the  win- 
ning and  working  therein  alleged,  and  so  far  as  the  same  relates  to  the 

(tt)  Struck  oat  on  argument :  ride  post,  p.  95. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  88 

injury  and  damage  occasioned  and  sustained  thereby,  and  as  to  the 
compensation  for  the  same,  and  as  to  so  much  of  the  said  first  count 
as  charges  the  defendant  with  not  having  paid  such  compensation, — 
that  such  winning  and  working  was  not  done  in  pursuance  of  or  under 
and  by  virtue  of  the  indenture  in  the  declaration  alleged  to  have  been 
made  by  the  said  E.  E.  D.  Shafto,  dated  September  12th,  1844,  or 
under  and  by  virtue  or  in  pursuance  of  any  of  the  powers  or  authori- 
ties therein  contained,  and  was  not  done  by  the  defendant  or  by  any 
person  by  his  authority  or  direction,  or  for  whose  act  or  acts  he  was 
or  is  responsible. 

The  plaintiff  demurred  to  the  sixth  plea,  on  the  ground  that  it  raised 
an  immaterial  issue.    Joiuder. 

Seventh  plea,  as  to  so  much  of  the  first  count  as  relates  to  the  damage 
and  injury  done  to  the  part  of  the  said  piece  of  ground  on  which  the 
•6aid  messuages  and  dwelling-houses  were  erected  and  built  and  stood, 
and  to  the  said  messuages  and  dwelling-houses,  and  to  the  compensa- 
tion claimed  by  the  plaintiff  in  respect  thereof, — that  such  damage  and 
injury  were  occasioned  by  reason  of  the  said  messuages  and  dwelling- 
houses  having  been  so  erected  thereon. 

The  plaintiflF  demurred  to  the  seventh  plea ;  the  ground  of  demurrer 
stated  in  the  margin  being  ''that  the  compensation  clause  in  the  deed 
of  1857  extends  to  houses  built  afterwards ;  and  that  the  plea  does  not 
show  that  but  for  the  working  of  the  mines  the  damage  would  not 
have  occurred."     Joinder. 

Manisty,  Q.  C.  (with  whom  was  T,  E.  Chitty),  for  the  *plain-  r^gg 
tiff.(fl)— [Williams,  J. — The  defence  set  up  is  twofold,— first,  ^ 
that  the  acts  complained  of  were  authorizea  by  the  lease, — secondly,  , 
that  the  injury  was  occasioned  by  the  building  of  the  houses.]  It 
appears  from  the  declaration,  that  the  testator,  on  the  12th  of  Septem- 
ber, 1844,  granted  a  lease  of  the  minerals  under  the  land  in  question 
to  persons  named  Brown  and  Gillan ;  that  he  died  in  1848,  having  by 
his  will  devised  his  estate  to  trustees  to  the  use  of  the  defendant  for 
life,  with  remainders  over,  with  a  power  of  sale  in  the  trustees,  with 
the  consent  of  the  person  for  the  time  being  entitled  to  the  fee ;  that, 
in  February,  1857,  the  trustees,  with  the  consent  of  the  defendant, 
under  the  power,  conveyed  the  piece  of  land  in  question  to  Robinson 
xn  {^G,  for  building  purposes,  reserving  the  mines  and  minerals,  "with 
power  to  win,  work,  and  carry  away  the  same  under  or  over  any  part 
of  the  said  hereditaments  and  premises,"  the  defendant,  or  the  person 
or  persons  for  the  time  being  entitled  thereto,  and  his  and  their  assigns, 
paying  to  Bobinson,  his  heirs  and  assigns,  compensation  for  any 
damage  which  he  or  they  might  sustain  thereby  ;  and  that  Robinson 

(a)  The  poinUi  murked  for  argnment  on  the  part  of  the  plaintiff  were  ai  follows  : — 
"  L  That  the  first  count  is  good,  and  fixes  the  defendant  with  liability  nnder  the  compensa- 
tton  elaaie  for  the  damage  done  to  the  plaintiff's  houses  by  the  working  of  the  mines, — 2.  That 
the  sixth  plea  raises  immaterial  issues, — 8.  That  the  eorenant  is  absolute  to  pay  for  damage 
by  the  woricing  of  the  mines,, by  whomsoever  worked, — 4.  That  the  question  whether  the  minei 
were  worked  nnder  the  defendant's  authority  is  irreleTaat,— 5.  That  the  sixth  plea  is  not  sared 
by  the  allegations  of  matter  of  law  contained  in  it, — 6.  That  the  seventh  plea  raises  an  imma- 
terial issue, — 7.  That  the  compensation  clause  extends  to  damage  to  houses  built  after  the  date 
of  the  deed,— 8.  That  the  eighth  plea  admits  the  damage  by  working  the  mines,  and  the  aUegad 
occasion  of  the  damage  is  immateriaL" 


BERKLEY  v.  SHAFTO.    T.  V.  1863. 


♦901   ^f^^r w^^^s  *conveyed  to  persona  under  whom  the  plaintiff  claims. 

-•  It  is  submitted  that  this  is  a  covenant  the  benefit  of  which  runs 
with  the  land,  and  that  the  declaration  sufficiently  shows  that  the  acts 
in  respect  of  which  compensation  is  claimed  have  been  done  by  per- 
sons for  whowse  acts  the  defendant  is  answerable,  viz.,  the  lessees  of  the 
testator,  or  their  assigns.  It  is  true  the  declaration  does  not  in  terms 
allege  that  the  lease  authorized  the  working  of  the  mines  under  the 
land  in  question :  but  it  must  be  assumed  that  the  working  was  right- 
ful, until  the  contrary  is  shown.  The  plaintiff  would  have  no  remedy 
against  the  lessees  or  their  assigns,  unless  he  could  show  them  to  bo 
wrongdoers.  The  question  is,  whether  the  compensation  which  the 
defendant  is  to  pay  under  his  covenant,  is  limited  to  surface  damage. 
The  sixth  plea  probably  means  to  allege  that  the  acts  complained  of 
were  the  acts  of  wrongdoers ;  but  it  is  not  so  stated.  Nor  does  the 
seventh  plea  afford  any  answer  to  the  declaration.  [Williams,  J. — • 
Does  not  the  declaration  confine  the  complaint  to  acts  done  under  the 
lease?]  It  is  submitted  that  it  does  not.  [Williams,  J. — Then  why 
mention  the  lease  ?]  It  was  necessary  to  set  out  the  lease,  in  order  to 
explain  the  breach.  [Bylks,  J. — The  sixth  plea  is  equivalent  to  an 
allegation  that  the  acts  complained  of  were  done  by  a  stranger.]  The 
seventh  plea  is  clearly  bad :  the  deed  of  1857  evidently  contemplates 
that  there  shall  be  houses  built  upon  the  land. 
*9n        Q^^^i^f  contri.(a) — The  first  count  is  clearlj*^  bad :  ♦the  only 

■•  breach  assigned,  is,  non-payment  of  compensation  for  damage. 
The  count  shows  that  the  injury  complained  of  is,  injury  to  the  sur- 
face of  the  land  by  letting  it  down  and  so  damaging  the  plaintiff's 
buildings.  It  is  submitted  that  that  is  not  a  damage  within  the  com- 
pensation clause ;  but  that  the  plaintiff  must  seek  his  remedy  by  an 
action  upon  the  case  against  the  person  who  did  the  mischief.  The 
compensation  contemplated  by  the  deed,  is  to  be  for  something  done 
in  pursuance  of  the  reservation:  but  the  declaration  does  not  show 
that  the  damage  complained  of  is  the  lawful  winning  and  working  of 
the  coal  under  that  reservation.  A  leading  case  upon  this  subject  is 
Harris  v.  Ryding,  5  M.  &  W.  60.  There,  A.,  being  seised  in  fee  of 
certain  lands,  granted  them  to  P.,  his  heirs  and  assigns,  reserving  to 
himself,  his  heirs  and  assigns,  "  all  and  all  manner  of  coals,  seams  and 
veins  of  coal,  iron-ore,  and  all  other  mines,  minerals,  and  metals  which 
then  were  or  at  any  time  and  from  time  to  time  thereafter  should  be 
discovered  in  or  upon  the  said  premises,  &c.,  with  free  liberty  of 
ingress,  egress,  and  regress  to  come  into  and  upon  the  premises,  to 
dig,  delve,  search  for,  and  get,  &c.,  the  said  mines  and  every  part 
thereof,  and  to  sell  and  dispose  of,  take,  and  convey  away  the  sa.me,  at 
their  free  will  and  pleasure,  and  also  to  sink  shafts,  &c.,  making  a  fair 
compensation  to  P.  for  the  damage  to  be  done  to  the  surface  of  the 
premises,  and  the  pasture  and  crops  growing  thereon."  It  was  held, 
that,  under  this  reservation,  A.  was  not  entitled  to  take  all  the  mines, 
but  only  so  much  as  he  could  get,  leaving  a  reasonable  support  to  the 
surface.    Parke,  B.,  in  the  course  of  the  argument,  observes, — "The 

(a)  The  poiDto  marked  for  argament  on  the  part  of  the  defendant  were  as  follows : — 
"  1.  That  it  is  not  shown  by  the  declaration  that  any  damage  has  been  done  by  any  of  the 
persons  for  whose  acts  the  defendant  has  covenanted  to  make  compensation, — 2.  That  he  la  not 
liable  for  the  damage  occasioned  by  the  houses,  Ac,  being  pat  upon  the  land." 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)  91 

clause  as  to  compensation  means  for  damage  done  by  exercising  the 
powers  reserved.  This  is  case  for  working  the  mines  in  an  unreason- 
able manner.  If  you  work  the  mine  in  an  unreasonable  *man-  p^g^ 
ner,  it  is  not  within  the  clause."  And,  in  giving  judgment,  he  ^ 
says :  "  The  rule  of  law  is,  that  a  reservation  is  to  be  construed  strictly : 
still,  however,  it  would  reserve  to  the  granto/  all  that  was  not  con- 
veyed by  the  grant,  provided  the  meaning  and  intention  of  the  parties 
be  clear.  What  then  is  the  meaning  and  intention  of  the  parties  here  ? 
It  is  clearly  the  meaning  and  intention  of  the  grantor  that  the  surface 
shall  be  fully  and  beneficially  held  and  enjoyed  by  the  grantee,  he 
reserving  to  himself  all  the  mines  and  veins  of  coal  and  iron-ore  below. 
By  reasonable  intendment,  therefore,  the  grantor  can  be  entitled  under 
the  reservation  only  to  so  much  of  the  mines  below  as  is  consistent 
with  the  enjoyment  of  the  surface  according  to  the  true  intent  of  the 
"parties  to  the  deed,  that  is,  he  only  reserves  to  himself  so  much  of  the 
mines  and  minerals  as  could  be  got,  leaving  a  reasonable  support  to 
the  surface."  [Williams,  J. — That  case  is  also  an  authority  to  show 
that  the  compensation  clause  only  gives  a  cumulative  remedy.]  Smart 
V.  Morton,  5  Ellis  &  B.  30,  is  a  very  similar  case.  [Williams,  J. — 
If  a  man  covenants  to  pay  compensation  for  damage  resulting  from 
what  he  properly  does,  does  he  not  k  fortiori  covenant  to  pay  compen- 
sation for  what  he  improperly  does?]  The  result  of  all  the  cases, — 
Roberts  v.  Haines,  6  Ellis  &  B.  643  (E.  C.  L.  R.  vol.  88),  (in  error, 
Haines,  app.,  Roberts,  resp.,  7  Ellis  &  B.  625  (E.  C.  L.  B.  vol.  90)), 
Robotham  v.  Wilson,  8  Ellis  &  B.  123  (B.  C.  L.  E.  vol.  92),  8  House 
of  Lords  Cases  348,  Bonomi  v.  Backhouse,  E.  B.  &  E.  642,  Backhouse 
v.  Bonomi,  9  House  of  Lords  Cases  503, — is,  that  a' reservation  of  a 
power  to  work  mines  and  minerals  does  not  authorize  a  working  so  as 
to  destroy  the  support  of  the  surface ;  and  that  the  defendant's  liability 
is  confined  to  compensation  for  such  acts  as  he  or  those  for  whose  acts 
he  is  responsible  may  do  by  virtue  of  the  reservation.  The  next 
question  is  as  to  the  person  by  whom  the  *injury  is  to  be  com-  |-#qo 
mitted.  The  action  is  not  founded  upon  the  lease,  but  exclu-  ^ 
sively  on  the  reservation  in  the  original  grant :  the  lease  is  introduced 
merely  for  the  purpose  of  showing  by  whom  the  injury  was  commit- 
ted. The  reservation  in  the  deed  is, — "  except  and  always  reserved 
out  of  these  presents  all  and  every  the  seam  and  seams  of  coal  and 
other  minerals  under  the  said  hereditaments  hereby  granted,  with 
power  to  win,  work,  and  carry  away  the  same  under  or  over  any  part 
of  the  said  hereditaments  and  premises ;  the  said  B.  D.  Shafto  or  the 
person  or  persons  for  the  time  being  entitled  thereto,  and  his  and  their 
assigns,  paying  to  the  said  B.  Bobinson  (the  lessee),  his  heirs  and 
assigns,  reasonable  compensation  for  anv  damage  which  he  or  they 
may  sustain  thereby."  To  assign  a  good  breach  of  that  covenant,  the 
declaration  must  aver  a  working  of  the  mines  by  B.  D.  Shafto  or  the 
person  or  persons  for  the  time  being  entitled  thereto :  whereas,  it  is 
consistent  with  what  is  here  alleged  that  the  injury  complained  of  was 
done  by  a  perfect  stranger ;  there  is  no  allegation  that  the  working  was 

1>ursuant  to  the  reservation  in  the  deed  of  1857,  or  pursuant  to  the 
ease.  [Byles,  J. — May  this  be  treated  as  a  count  in  tort?]  It  is 
submitted  not;  for,  in  that  case,  it  must  be  shown  that  the  injury  was 
done  by  the  defendant  or  by  some  person  with  his  privity  and  by  his 


93  BERKLEY  v.  SHAFTO.    T.  V.  1863. 

authority.  [Byles,  J. — You  say  tbat  workings  without  the  power 
are  wrongs;  and  that  the  defendant  is  liable  for  lawful  workings,. but 
not  for  wrongs.]  Precisely  so :  the  authorities  show  that  the  wrong- 
doer is  the  only  person  liable.  The  7th  plea  addresses  itself  to  the 
suggestion  that  the  land  in  question  was  conveyed  for  building  pur- 
poses. Since  the  case  of  The  Caledonian  Railway  Company,  app., 
♦941   ^P^^^'  resp.,  2  Macq.  449,(a)  it  cannot  be  denied  *that,  if  this  had 

■•  been  a  grant  of  land  expressly  for  building  purposes,  there 
would  have  been  an  implied  grant  of  the  land  together  with  the  build- 
ings to  be  erected  upon  it.  Here,  however,  there  is  no  express  grant 
for  building  purposes ;  no  covenant  to  build.  The  plaintiff  relies  on 
the  collateral  covenant  by  the  grantee  that  the  hereditaments  and  pre- 
mises conveyed  by  the  deed,  "  or  any  buildings  now  or  hereafter  to  be 
erected  thereon,"  shall  not  be  used  for  certain  purposes.  The  obvious 
meaning  of  that,  is,  that,  if  the  grantee  shall  hereafter  choose  to  use 
the  land  for  building  purposes,  he  shall  not  thereby  create  a  nuisance. 
[Williams,  J. — There  is  abundant  evidence, on  the  face  of  the  deed 
that  the  parties  contemplated  that  the  land  would  be  built  upon.] 
That  will  not  bring  the  case  within  The  Caledonian  Railway  Com- 
pany, app.,  Sprot,  resp.  There,  the  company  could  not  use  the  land 
for  any  other  purpose  than  the  construction  of  their  railway.  The 
plea  is  clearly  good,  within  the  cases  of  Brown  v.  Robins,  4  Hurlst.& 
N.  186,  and  Stroylan  v.  Knowles,  6  Hurlst.  &  N.  454.  In  the  last- 
mentioned  case  it  was  held,  that,  where  the  working  of  mines,  in  how- 
*9^1   ^^^^  careful  *a  manner,  has  caused  a  subsidence  of  the  adjacent 

-'  land,  the  owner  is  entitled  to  recover  in  respect  of  damage  to 
buildings  thereon,  although  erected  within  twenty  years,  provided  their 
weight  did  not  contribute  to  the  subsidence, 

ifanisiy,  Q.  C,  in  reply. — The  question  is  narrowed  to  this,— 
whether  there  was  a  rightful  or  a  wrongful  working  of  the  mines  by 
the  lessees  or  their  assigns :  if  the  former,  it  is  conceded  that  the 
defendant  is  liable ;  but,  if  the  latter,  it  is  contended  that  he  is  not. 
Vice-Chancellor  Wood  decided  yesterday,  in  a  suit  by  the  tenant  for 
life  to  restrain  the  lessees  from  working  the  mines  so  as  to  disturb  the 
surface,  that  they  were  not  only  entitled  but  bound  to  work  out  all 
the  coal,  irrespective  of  any  injury  that  might  be  done  to  the  surface. 
Smart  v,  Morton,  5  Ellis  &  B.  SO,  decides  that  you  must  look  at  the 
reservation  to  see  what  is  a  rightful  and  what  a  wrongful  working. 
The  plaintiff  is  no  party  to  the  deed.  It  is  for  the  defendant  to  show, 
if  the  fact  be  so,  that  the  working  was  wrongful.  [The  Court  sug- 
gested that  the  declaration  should  be  amended  by  striking  out  the 
words  in  italics  in  p.  87,  and  substituting  the  following, — *'  by  such 

(a)  It  WAS  there  held  that  »  oonreyanoe  of  lead  to  a  railway  oompany  for  the  pnrpoies  of 
the  line,  gires  a  right  hy  impUcatioii  to  all  reasonable  rabjacent  and  a^aeent  support  oonneoted 
with  the  subject-matter  of  Uie  conveyance :  and  therefore,  although  in  the  oonreyanoe  to  the 
ridlway  company  the  minerals  are  reserred,  the  grantor  is  not  entiUed  to  work  them,  CTen 
under  his  own  land,  in  any  manner  calculated  to  endanger  the  railway.  Bat,  if  I  grant  a  mea- 
dow to  A.  for  grating  purposes,  ret^ning  the  minerals  and  the  a^Jaoent  land,  and  if  A.,  haring 
no  warranty  against  subsidence,  thinks  fit  to  build  a  house  on  the  edge  of  the  meadow,  aad  the 
house  falls,  he  is  without  remedy  against  me,  and  has  himself  alone  to  blame  for  the  conse- 
quences. If,  howcTcr,  the  grant  were  made  expressly  for  building  puiposes,  there  would  then 
be  an  impUed  warranty  of  support,  both  sulgacent  and  a^jacent^ 

And  tee  BlUot  v.  The  North  Eastern  RaUway  Company,  83  Law  J.,  ChaA.  403  (in  the  Houn 
«f  Lords). 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)  95 

wiDning,  working,  and  carrying  away  as  in  the  first  deed  is  mentioned 
and  provided  for,"  withdrawing  the  demurrer  to  the  declaration,  and 
substituting  a  traverse  for  the  sixth  plea.  After  some  discussion,  this 
was  assented  to.]  The  substantial  question  is,  whether  the  winning 
and  working  was  rightful.  It  may  be  assumed  to  have  been  done 
under  a  lease  granted  before  the  conveyance  of  1857.  With  know-  . 
ledge  of  the  existence  of  the  lease,  the  defendant  chooses  to  convey  the 
land  with  this  compensation  clause.  The  covenant  will  be  construed 
with  reference  to  the  state  of  things  at  the  time  of  the  making  of  the 
deed :  Smart  v.  Morton.  As  to  •the  seventh  plea, — it  may  be  r^g^ 
conceded,  that,  if  the  houses  were  built  under  an  ordinary  lease,  '- 
and  their  building  occasioned  the  subsidence,  the  plaintiff  would  have 
no  cause  of  action.  But  it  is  otherwise  where  it  is  manifest  en  the 
face  of  the  deed  that  it  was  contemplated  that  the  land  should  be 
used  for  building  purposes.  Regard  being  had  to  the  dimensions  of 
the  subject-matter  of  jthe  conveyance,  at  the  comparatively  large  price 
paid  for  it,  and  at  the  nature  of  the  covenants  entered  into  by  the 
grantee,  it  is  impossible  to  doubt  that  this  was  a  grant  for  building 
pul-poses. 

Williams,  J. — I  am  of  opinion  that  the  declaration,  as  amended, 
is  good,  and  the  seventh  plea  bad,  and  consequently  that  the  plaintiff 
is  entitled  to  judgment.  As  the  declaration  originally  stood,  in  con- 
junction with  the  sixth  plea,  some  very  important  points  were  raised : 
and  the  material  part  of  those  points  will  arise  again  whenever  the 
argument  upon  the  traverse  which  is  now  substituted  shall  take  place. 
The  declaration,  after  setting  out  the  purchase-deed  of  February,  1857. 
and  bringing  down  the  title  to  the  plaintiff,  proceeds  to  allege  the 
damage  done  after  his  title  accrued ;  and  it  states  the  damage  in  this 
way, — "the  said  messuages  and  dwelling-houses  were  injured  and 
damaged,  and  the  plaintiff  sustained  damage  thereto,  by  such  winning, 
working,  and  carrying  away  as  in  the  first  deed  is  mentioned  and 
provid^  for,  of  seams  and  parts  of  seams  of  coal,  which  seams 
extended,  reached,  and  were  under  the  said  piece  o^  ground  above 
mentioned,  and  which  sustained  and  supported  the  said  piece  of  ground 
and  the  said  messuages  and  dwelling-houses,"  &;c.  The  amended  record 
will  contain  a  traverse  of  that  averment,  in  lieu  of  the  sixth  plea :  and 
the  first  question  we  have  to  decide,  is,  whether  the  declaration  as 
thus  amended  is  good.  I  *am  of  opinion  that  it  is.  There  is  a  ^g^ 
distinct  admission  by  the  demurrer  that  the  injury  was  such  as  ^ 
formed  the  subject  of  compensation  under  the  clause  for  compensation 
contained  in  the  deed ;  and  the  declaration  is  good,  unless  the  nature 
of  the  covenant  makes  such  a  breach  repugnant  and  impossible.  I 
was  at  first  much  struck  with  the  view  presented  on  the  part  of  the 
defendant,  that  this  was  nothing  more  than  the  ordinary  covenant 
contained  in  deeds  where  there  is  a  separation  of  the  mines  and 
minerals  from  the  surface  of  the  land,  viz.  that  the  grantor  shall  have 
a  right  to  win  and  work  the  minerals  and  to  use  the  surface  for  the 
purpose  of  carrying  them  away,  constructing  works,  and  opening 
shafts,  payable  a  reasonable  compensation  for  surface  damage.  At 
first  I  was  inclined  to  think  that  this  was  simply  a  covenant  of  that 
sort.  But  we  have  nothing  to  do  with  that  now.  Even  construing 
the  covenant  in  that  narrow  way,  I  cannot  say  that  it  is  not  possible 


97  BERKLEY  v,  SHAFTO.    T.  V.  1863. 

that  the  damage  complained  of  may  have  been  done  by  a  winning  and 
forking  of  the  mines  by  persons  for  whose  acts  the  defendant  is 
responsible.  As  to  the  seventh  plea, — we  are  not  fettered  by  any  of 
the  authorities  cited,  though  the  reasoning  of  some  of  them  may 
Msefully  be  applied  to  the  present  argument.  The  question  is  one  of 
xonstruction  upon  the  surrounding  circumstances  appearing  upon  the 
record.  The  plea  in  effect  denies  that  the  plaintiflF  is  entitled  to  com- 
pensation under  the  clause  for  compensation  contained  in  the  deed, 
for  damage  (if  any)  resulting  from  the  winning  and  working  of  the 
minerals  under  the  land,  because  such  damage  was  occasioned  by  the 
erection  of  the  houses  thereon.  It  is  plain,  I  think,  from  the  whole 
tenor  of  the  deed,  that  the  parties  did  contemplate  that  houses  would 
be  buik  upon  the  land:  it  is  almost  treated  as  a  certainty.  It  seems 
monstrous  to  say,  that,  where  a  deed  contemplates  the  building  of 
♦981  *'^°'^s®^»  ^°^  provides  specifically  for  what  shall  be  done  when  the 
-•  houses  are  built,  the  grantee  shall  forfeit  his  claim  to  compensa- 
tion because  he  has  carried  into  effect  that  which  was  contemplated 
by  the  grant.  I  am  clearly  of  opinion  that  the  plaintiflF  is  entitled  to 
compensation  if  he  has  sustained  damage  from  the  working  of  the 
mines,  notwitstanding  his  having  built  on  the  laud,  and  consequently 
that  the  seventh  plea  is  no  answer  to  the  declaration.     ' 

WiLLES,  J. — I  am  of  the  same  opinion.  As  to  the  declaration,  all 
that  the  court  does,  is,  to  direct  that  the  issue  shall  be  in  the  proper 
form  for  determining  whether  or  not  the-acts  complained  of  are  acts 
which  are  within  the  compensation  clause  in  the  deed.  As  to  the 
seventh  plea,  the  question  raised,  is,  whether  the  deed  affords  any 
protection  in  respect  of  injury  done  to  the  surface  of  the  land  with 
houses  built  upon  it.  I  must  admit  that  my  mind  has  fluctuated 
during  the  argument  on  this  point.  The  only  mention  of  buildings 
is  in  the  covenant  of  the  vendee  against  using  the  premises  so  as  to 
incur  danger  or  create  a  nuisance,  and  has  reference  rather  to  the 
rights  of  the  vendor  than  to  those  of  the  vendee.  But,  when  it  is  pointed 
out  that  this  relates  to  "  any  buildings  now  or  hereafter  to  be  erecUi^ 
on  the  land,  I  think  it  must  clearly  be  implied  that  the  building  of 
houses  was  contemplated,  and  that  the  houses  to  be  built  were  entitled 
to  support,  and  consequently  that  the  damage*  done  to  them  is  to  be 
compensated  for. 

Byles,  J. — It  is  unnecessary  to  express  any  opinion  upon  the 
declaration  as  it  originally  stood.  The  amendment,  which  >was  very 
properly  consented  to  by  Mr.  Quain,  has  entirely  changed  its  efiFect. 
The  question  now  presented  by  the  breach,  as  amended,  is,  whether 
♦991  ^^^  working  of  the  mines  which  is  complained  *of  was  a  work- 
-•  ing  provided  for  by  the  deed.  I  cannot  say  that  that  is  a  bad 
breach,  unless  I  am  prepared  to  say  that  under  no  conceivable  circum- 
stances could  it  be  a  good  breach.  Upon  this  I  express  no  opinion. 
But,  as  to  the  seventh  plea,  I  entirely  agree  with  my  Brothers  Wil- 
liams and  Willes. 

Bule  accordingly, — the  costs  to  be  costs  in  the  cause.(a) 

(a)  At  the  trial  the  plalotUT  obtained  a  Terdict,  which  there  was  no  attempt  to  dtitnrh. 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)         99 


NELSON  and  Others  v.  COUCH  and  Others.    June  23. 

To  eoDBtitnte  a  good  plea  6f  res  jadicata/  It  must  be  shown  that  the  former  suit  was  one  in 
whieh  the  plaintiff  might  have  recovered  jtrtfiuf^y  that  which  he  seeks  to  recover  in  the  second. 

Where,  therefore,  the  plaintiffs  had  nndlclr  ^^d^cree  of  the  Admiralty  Court  in  a  suit  for  a 
collision  obtaiued  the  whole  proceeds  of  thc'saVsv^  the  defendants'  vesselp — Held,  that  such 
recovery  was  no  bar  to  a  subsequent  action  in  a  cglirt;pf  common  law,  the  amount  so  recovered 

in  the  Admiralty  Court  being  insufficient  to  eovei'  ta^.d&mage  the  plaintiffs  had  sustained. 

*•     •  • 

This  was  an  action  to  recover  damages  igainst  the  defendants  for 
running  down  the  plaintiffs'  vessel  on  the  hign^'seas. 

The  declaration  stated,  that,  before  and  at  tno'thne  of  the  grievance 
thereinafter  mentioned,  the  plaintiffs  were  la^i&illy  possessed  of  a 
certain  ship  of  great  value,  to  wit,  the  Peri,  then  Jdwfully  being  at 
sea,  to  wit,  in  the  English  Channel,  and  the  defend aat^-vrere  also  then 
possessed  of  a  certain  ship,  to  wit,  the  Leo,  in  the  saiS-^afUsh  Chan- 
nel, and  then  had  the  care,  direction,  and  management  df  "Eh^^  same ; 
yet  that  the  defendants,  not  regarding  their  duty  in  that  bebal^^  y^Jiilst 
the  said  ship  of  the  plaintiffs  so  was  in  the  English  Channel  afgr^gnd, 
took  so  little  and  such  bad  care  of,  and  so  carelessly,  negligently ,^3>fld 
unskilfully  navigated,  managed,  governed,  and  directed  the  said  ship 
of  them  the  defendants,  that  the  said  ship,  by  and  through  the  care- 
lessness, misdirection,  mismanagement,  negligence,  and  improper  con- 
duct of  the  defendants  *and  their  servants  in  that  behalf,  then  r#|AA 
with  great  force  and  violence  ran  foul  of  and  struck  against  the  '- 
said  ship  of  the  plaintiflfe,  and  thereby  then  sank  and  swamped  the  same; 
and  by  means  of  the  premises  the  said  ship  of  the  plaintiffs,  together 
with  all  her  cargo,  tackle,  apparel,  and  other  furniture,  goods,  chattels, 
and  effects,  then  on  board  thereof,  became  and  was  wholly  lost  to  the 
plaintiffs.     Claim,  1500/. 

Second  plea, — that,  before  the  commencement  of  this  action,  the 
plaintiffs  did  in  the  High  Court  of  Admiralty  of  England,  then  law- 
fully having  jurisdiction  in  that  behalf,  duly  institute  a  cause  against 
the  defendants'  said  ship  Leo  and  the  freight  thereof,  for  and  in  respect 
of  the  matters  complained  of  in  the  declaration,  and  for  the  same 
causes  of  action  therein  named ;  and  thereupon  the  plaintiffs  caused  a 
warrant  to  be  duly  issued  out  of  the  said  court,  commanding  the 
marshal  of  the  said  court  and  all  and  singular  his  substitutes  to  arrest 
the  said  ship  and  freight,  and  to  keep  the  same  under  safe  arrest  until 
he  or  they  should  receive  further  orders,  and  to  cite  all  persons  who 
had  or  claimed  to  have  anv  right,  title,  or  interest  in  the  ship  or 
freight,  to  enter  within  six  days  from  the  service  thereof  (exclusive 
of  the  day  of  such  service)  in  the  registry  of  the  said  court  an  appear- 
ance in  the  said  cause,  and  further  commanding  the  said  marshal  and 
all  and  singular  his  substitutes  to  warn  all  the  said  persons,  that,  if 
they  did  not  enter  an  appearance  as  aforesaid,  the  judge  of  the  said 
coart  would  proceed  to  determine  the  said  cause,  and  to  make  such 
order  therein  as  to  him  should  seem  ri^ht :  that  the  said  marshal  duly 
arrested  the  said  ship  and  freight,  and  executed  the  said  warrant  ac- 
cording to  the  tenor  and  purport  thereof:  that  an  appearance  was 
daly  entered  in  the  said  cause  by  and  on  behalf  of  the  owners  of  the 
cargo  of  the  said  ship,  and  the  sum  of  1871.  Ss.  Id.,  being  *the 


amount  of  the  freight  of  the  said  ship,  was  paid  into  the  regis- 


[*101 


101  NELSON  t;.  COUCH.    T.  V.  1863. 

try  of  the  said  court :  that  no  appearance  was  entered  in  the  said  cause 
by  or  on  behalf  of  the  defendants,  the  owners  of  the  said  ship ;  and 
thereupon  such  proceedings  were  lawfully  had  by  the  plaintiffs  in  the 
said  court,  that  the  said  ship,  with  Jber  tackle,  apparel,  and  furniture, 
was  lawfully  decreed  by  the  said  COJ^rt'to  be  sold  by  public  auction, 
and  the  proceeds  thereof  to  be  paid-inlo  the  registry  of  the  said  court; 
and  the  said  ship,  with  her  tagW^J.  apparel,  and  furniture,  was  so  sold 
by  public  auction  under  anJ:bjr  virtue  of  the  said  decree  for  the  sura 
of  830?.,  and  the  said  sunl'was  paid  into  the  registry  of  the  said  court; 
and  thereupon  the  8aid*:qaose  came  on  for  hearing  before  the  judge 
of  the  said  court,  ^n^'.fhe  said  judge  pronounced  for  the  damage 
proceeded  for,  epnderrihed  the  proceeds  of  the  said  vessel  Leo  and 
freight  therein,  a'ft(J  in  costs,  and  directed  the  sum  of  957t  4s.  6rf., 
being  the  balarntJe'bf  the  said  proceeds  of  the  said  sale  and  the  amount 
of  the  saicJ'Crdight  (after  payment  of  the  lawful  expenses  of  the  .said 
marshal jorcfefea  by  the  said  court  to  be  paid  to  him  the  said  marshal), 
to  be* -paid' to  the  plaintiffs;  and  the  said  sum  was  so  paid  out  to  the 
pl^intffTs':  and  that  all  things  had  been  done  and  performed,  and  all 
timfei  liad  elapsed,  necessary  to  make  the  said  proceedings  in  the  said 
Admiralty  Court  valid  and  effectual  in  the  law,  and  binding  upon  the 
plaintiffs  and  the  defendants  respectively ;  and  that  the  said  proceed- 
ings, and  every  of  them,  were  instituted  by  the  plaintiffs,  and  the  said 
decree  made  in  favour  of  the  plaintiffs,  in  respect  of  and  concerning 
the  same  cause  of  action  in  the  declaration  sued  on,  and  not  otherwise. 

Second  replication  to  the  second  plea, — that  the  damages  sustained 
by  the  plaintiffs  by  reason  of  the  breach  in  the  declaration  mentioned, 
♦1021  S^^^^'y  exceeded  *the  said  moneys,  being  the  balance  of  the 
-'  proceeds  of  the  said  sale  and  the  amount  of  the  said  freight,  in 
the  said  second  plea  mentioned,  and  therein  alleged  to  have  been  paid 
out  to  the  plaintiffs:  And  the  plaintiffs  further  said  tbat  they  sued,  not 
for  the  recovery  of  the  said  moneys  so  paid  out  to  the  plaintiffs  as  in 
the  said  second  plea  mentioned,  or  in  respect  of  the  causes  of  action 
thereby  satisfied,  but  in  respect  of  the  residue  of  the  said  damage 
sustained  by  them  by  reason  of  the  said  alleged  breach. 

The  plaintiffs  also  demurred  to  the  second  plea,  the  ground  of  de- 
murrer stated  in  the  margin  being  "  that  the  judgment  of  the  said 
High  Court  of  Admiralty  is  no  bar  to  this  action,  and  that  the  said 
second  plea  does  not  show  any  satisfaction  of  the  claim  of  the  plain- 
tiffs."    Joinder. 

Third  plea, — that  the  causes  of  action  in  the  declaration  mentioned 
accrued  after  the  passing  of  the  Merchant  Shipping  Act,  1854  (17  & 
18  Vict.  c.  104),  and  while  the  said  act  was  in  force  and  the  provisions 
thereof  in  respect  of  the  matters  in  this  plea  mentioned  ;  that  the  de- 
fendants then  were  the  owners  of  the  said  ship  Leo,  then  being  a  sea- 
going ship,  and  that  the  causes  of  action  in  the  declaration  mentioned 
were  in  respect  of  loss  or  damage  by  reason  of  improper  navigation 
of  such  sea-going  ship  caused  to  the  said  ship  of  the  plaintiffs,  and 
the  cargo,  tackle,  apparel,  and  other  furniture,  goods,  chattels,  and 
effects  on  board  the  said  last-mentioned  ship ;  and  that  such  loss  or 
damage  as  aforesaid  occurred  without  the  actual  fault  or  privity  of  the 
defendants  or  either  of  them ;  and  that  the  value  of  the  said  ship  and 
the  freight  due  or  to  grow  due  in  respect  of  such  ship  during  the 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)        102 

voyage  which  at  the  time  of  the  happening  of  the  said  loss  or  damage 
was  in  prosecution  or  contracted  for,  was  a  sum  of  money,  to  wit,  the 
sum  of  9671.  45.  6rf.,  and  the  *defendantfl  paid  such  last-men-  r^-iAo 
tioned  sum  to  the  plaintiffs  before  suit.  L 

The  defendants  also  demurred  to  the  second  replication  to  the  second 
plea,  the  ground  of  demurrer  stated  in  the  margin  being,  "that  the 
judgment  of  the  said  Court  of  Admiralty  is  a  bar  to  the  whole  action 
and  to  the  matters  mentioned  at  the  end  of  the  said  replication." 
Joinder, 

Archibald,  for  the  plaintiffs.(a) — It  appears  from  the  record  that  the 
owner  of  the  cargo  alone  intervened  in  the  Admiralty  Court :  the 
owners  of  the  ship  did  not  appear :  and  this  action  is  brought  to 
recover  the  difference  between  the  amount  recovered  in  the  suit  in 
that  court  and  the  damage  actually  sustained  by  the  plaintiffs  in  con- 
sequence of  the  defendants'  negligence.  The  judgment  in  the  suit  in 
the  Admiralty  Court,  which  is  a  judgment  in  a  proceeding  in  rem, 
affords  no  answer  to  the  plaintiffs*  claim.  The  plaintiffs  are  clearly 
entitled  to  recover  to  the  extent  of  the  value  of  the  defendants'  vessel 
immediately  before  the  collision:  Brown  v.  Wilkinson,  15  M.  &  W. 
391.  There  are  two  cases  in  the  Ac^miralty  *Court  where  r*iA4 
recourse  was  allowed  against  the  ship,  on  the  personal  proceed-  ^ 
ing  proving  fruitless.  In  the  case  of  The  Bengal,  W.  H.  Henderson, 
Swabey's  Adm.  R.  468,  a  personal  action  (by  the  master  for  wages) 
proving  fruitless,  he  was  allowed  to  proceed  in  rem  against  the  ship.  So, 
in  The  John  and  Mary,  Swabey's  Adm.  R.  471,  the  plaintiff,  having  sued 
in  a  cause  of  collision  at  common  law,  and  recovered  a  verdict,  was 
held  to  be  entitled,  on  the  defendant  proving  insolvent,  to  sue  the 
ship  in  the  Court  of  Admiralty,  even  after  the  ship  had  been  trans- 
ferred to  a  third  party. 

Brett,  Q.  C,  for  the  defendants.(6) — There  were  two  courses  open 
to  the  plaintiffs.  They  might  have  sued  the  owners  in  personam,  in 
which  case  they  would  have  recovered  all  the  damages  they  had  sus* 
tained  from  the  collision;  or,  if  they  chose  to  proceed  in  rem,  thereby 
obtaining  the  great  advantage  of  seizing  the  ship  and  so  insuring  the 
damages  to  the  extent  at  least  of  the  value  of  the  ship,  they  must  be 

(a)  The  pointf  marked  for  argument  on  the  part  of  the  plaintiffs  were  ai  follows  : — 
''  That  the  seeond  plea  is  bad,  and  the  second  replication  to  it  is  good :  That  the  proceedinga 
in  the  Admiraltj  Court  set  forth  in  the  second  plea,  being  proceedings  merely  in  rem,  constitute 
DO  aasver  either  in  bar  or  estoppel  of  the  present  action,  which  is  a  proceeding  in  personam : 
That  the  second  plea  does  not  allege  or  show  any  satisfaction  or  merger  of  the  claim  of  the 
pliiDtiffs :  That  it  is  admitted  by  the  second  plea,  or  appears  by  the  second  replication  to  it, 
that  the  plaintiffs  have  only  received  a  partial  satisfaction  ;  and  that  the  plaintiib  are  entitled^, 
after  proceeding  against  the  ship,  to  proceed  against  the  defendants  personally  untU  the  damages 
^  iBilained  bare  been  completely  satisfied." 

(6)  The  points  marked  for  argument  on  the  part  of  the  defendants  were  as  follows  : — 
"  1.  That  the  second  plea  is  good,  and  that  the  second  replication  to  it  Is  bad  i 
"  2.  That  the  proceedings  in  the  Admiralty  Court  mentioned  in  the  second  plea  obnstitute  m 
ftill  answer  to  the  action,  and  show  a  bar  or  estoppel  thereof;  and  that  a  personal  action  can- 
set  be  engrafted  upon  an  action  in  rem  : 

"  3.  That  the  defendants,  baring  elected  to  take  their  remedy  by  the  proceedings  in  the  AdmU 
nliy  Conrty  are  barred  from  proceeding  in  a  second  action,  the  parties  and  cause  of  action  balog 

"4.  That  the  seeond  plea  shows  a  tail  satisfaotion  and  merger  of  the  plaintiffs'  claim : 

"  S.  That,  area  if  it  be  admitted  on  the  pleadings  that  the  plaintiffs  hare  reeeired  a  partly 

istisfaetion  only,  yet  the  proceedings,  Judgment,  and  decree  In  the  Court  of  Admiralty  an  a 

Wr  to  the  whole  action  at  law." 
C,  B.  K.  8  ,  VOL,  XV,— 6 


104  NELSON  V.  COUCH.    T.  V.  1868. 

*1051  ^^"*®^^  ^^^^  •that:  they  take  their  chance  whether  or  not  the 
J  ship  will  produce  enough  to  satisfy  their  entire  damages: 
Coote's  Admiralty  Practice  7,  8.  Such  an  action  as  this  has  never 
yet  been  maintained:  it  is  not  competent  to  a  party  to  sue  in  personam 
after  having  elected  to  sue  in  rem.  [Wille?,  J.,  referred  to  the  case 
of  The  Bold  Buccleugh,  Harmer,  app.,  Bell,  resp.,  7  Moore's  P.  C.  267. 
There,  a  Scotch  steamer  ran  down  an  English  vessel  in  the  Humber. 
An  action  was  commenced  in  the  Court  of  Admiralty  in  England  by 
the  owners  of  the  English  vessel  against  the  owners  of  the  steamer, 
and  a  warrant  of  arrest  issued  against  the  ship;  but,  before  the  ship 
could  be  arrested,  she  had  sailed  for  Scotland.  A  suit  was  then  com- 
menced by  the  owners  of  the  English  vessel  against  the  owners  of  the 
steamer  in  the  court  of  session  in  Scotland  for  the  damage,  and  the 
steamer  was  arrested  under  process  of  that  court,  but  subsequently 
released  upon  bail.  Afterwards,  and  pending  these  proceedings,  the 
steamer  was  sold,  without  notice  to  the  purchaser  of  this  unsatisfied 
claim  against  her.  The  proceedings  in  the  court  of  session  were  still 
pending,  when  the  steamer,  having  come  within  the  jurisdiction  of 
England,  was  again  arrested  under  process  of  the  High  Court  of  Admi- 
ralty in  England,  and  an  action  for  damage  commenced  in  that  court  for 
the  same  cause  of  action  as  was  still  pending  in  Scotland,  instructions 
being  sent  to  Scotland  to  abandon  the  proceedings  in  the  court  of  session. 
The  owners  of  the  steamer  appeared  under  protest  in  the  Admiralty 
'Court,  and  pleaded,  amongst  other  pleas,  lis  alibi  pendens.  It  was  held 
by  the  judicial  committee  of  the  Privy  Council  that  the  plea  was  bad,  as 
the  suit  in  Scotland  was  in  the  first  instance  in  personam,  the  proceedings 
being  commenced  by  process  against  the  persons  of  the  owners  of  the 
•»1061  ^^^^^  (^^®  defendants),  'and  the  arrest  of  the  steamer  only  col- 
^  lateral,  to  secure  the  debt,  while  the  proceedings  in  the  Admi- 
ralty Caurt  in  England  were,  in  the  first  instance,  in  rem,  against  the 
vessel,  and  therefore,  the  two  suits  being  in  their  nature  different,  the 
pendency  of  one  suit  could  not  be  pleaded  in  suspension  of  the  other.] 
In  the  case  of  The  Kalamazoo,  15  Jurist  885,  an  American  ship  was 
arrested  in  a  cause  of  collision  promoted  in  the  Admiralty  Court  by 
the  owners  of  the  ship  and  cargo  damaged,  and  bailed  for  3500Z.,  and 
the  damage  pronounced  for,  and  referred  to  the  registrar  and  mer- 
dhants.  It  being  subsequently  ascertained  thot  the  damage  to  the 
•cargo  exceeded  4800^.,  the  owners  arrested  the  ship  in  a  fresh  action  for 
the  difference.  Dr.  Lushington  said :  "I  think,  when  a  party  has  once 
proceeded  before  the  court,  and  recovered  judgment,  he  is  barred  from 
proceeding  in  a  second  action.  But  it  is  said  that  the  party  ought  to 
•receive  the  whole  amount  of  the  damage  done,  to  the  full  extent  of 
the  value  of  the  ship  in  fault.  To  this  there  are  two  answers.  First, 
it  was  their. own  fault  if  they  did  not  arrest  her  to  the  full  value  of 
the  ship;  and,  secondly,  there  is  no  authority  to  show,  that,  having 
obtained  bail  for  the  ship,  you  can  afterwards  proceed  against  the 
owner  to  make  up  the  amount  of  the  loss.  I  cannot  think  that  I  can 
engraft  a  personal  action  upon  an  action  in  rem."  There,  the  plaintiffs 
had  elected  their  remedy,  and  they  had  obtained  a  decree  for  all  the 
damages  they  claimed  in  the  first  action.  [WiLLES,  J. — Dr.  Lushing- 
ton refused  to  engraft  upon  an  action  in  rem  a  second  action  in  rem.]  In 
ike  case  of  The  Hope,  Hepburn,  1  W.  Rob.  15i,  the  value  of  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        106 

vessel  condemned  being  insufficient  to  answer  the  damage,  the  same 
learned  judge  held  that  it  was  not  competent  for  the  court  to  engraft 
upon  the  proceeding  in  rem  a  personal  action  against  •the  owner  ^^^  ^^ 
of  the  vessel  to  make  good  the  excess  of  damage  beyond  the  pro-  L  ^^ ' 
ceeds  of  the  ship.  "  Looking,"  he  says,  "  to  the  general  principles  upon 
which  the  proceedings  in  this  court  are  conducted,  it  is,  I  apprehend, 
wholly  incompetent  for  the  court  to  engraft  a  personal  action  against 
the  master  as  part-owner  of  this  vessel  upon  the  proceedings  which 
have  already  taken  place  in  this  cause.  It  may  be  true,  as  stated,  that 
the  proceeds  of  the  Hope  will  prove  inadequate  to  answer  the  full 
amount  of  the  damages  which  the  owners  of  the  Nelson  have  sustained. 
If  so,  it  is  undoubtedly  a  hardship  upon  these  owners;  but  this  cir- 
camstance  will  not  entitle  me  to  exercise  a  jurisdiction  in  their  behalf, 
which,  according  to  my  own  impression,  I  clearly  do  not  possess.  I 
am  not  aware  of  any  case  in  which  this  court,  in  a  proceeding  of  this 
kind,  has  ever  engrafted  upon  it  a  further  proceeding  against  the 
owners,  upon  the  ground  that  the  proceeds  of  the  vessel  proceeded 
against  have  been  insufficient  to  answer  the  full  amount  of  the  damage 
pronounced  for."  [Bylbs,  J. — There  is  nothing  there  to  show  that  the 
jurisdiction  of  this  court  is  affected  by  the  proceedings  in  the  Admiralty 
Court.]  Having  obtained  a  decree  of  a  court  of  competent  and  con- 
current jurisdiction, — a  court  whose  decrees  and  orders  are  to  have 
the  effect  of  judgments  at  common  law :  24  Vict.  c.  10,  s.  15, — it  is 
contrary  to  reason  to  bold  that  a  party  shall  be  entitled  to  proceed  for 
the  same  cause  of  action  in  another  court  The  case  of  The  Yolant, 
Merchenty  1  W.  Bob.  383,  1  Notes  of  Cases  503,  is  to  the  same  effect 
as  the  case  of  The  Hope,  Hepburn.  In  the  two  cases  in  the  Admiralty 
Court  relied  on  by  the  other  side,  there  had  been  no  execution  upon 
the  judgment  in  the  first  proceeding.  Whereas,  this,  it  is  submitted, 
is  precisely  the  same  as  if,  after  judgment  and  execution  in  an  action  in 
one  common-law  court,  a  *second  action  were  brought  in  another  r«|Ao 
court  in  respect  of  the  same  cause.  In  Perry  v.  Barker,  8  Ves.  ^ 
527, 13  Yes.  198,  after  foreclosure  and  sale  of  the  mortgaged  estate,  the 
Court  of  Chancery  granted  an  injunction  to  restrain  the  mortgagee 
from  seeking  to  recover  the  difference  at  law.  In  the  case  of  the 
Fortitude,  Henrickson,  2  Dods.  Adm.  B.  58,  it  was  held  that  parties 
who  have  abandoned  a  former  suit  instituted  by  them  to  compel  pay- 
ment of  certain  alleged  bottomry-bonds,  will  not  be  permittee!,  unless 
on  strong  grounds  shown,  to  carry  on  proceedings  a  second  time  to 
enforce  a  demand  founded  on  the  very  same  bonds.  By  the  Merchant 
Shipping  Act,  17  &  18  Vict.  c.  104,  s.  504,  the  owner's  liability  is  in 
no  case  to  exceed  the  value  of  the  ship,  where  the  event  has  happened 
without  his  actual  fault  or  privity.  That  provision  will  be  futile,  if  a 
proceeding  of  this  sort  be  permitted. 

Archibald^  in  reply,  was  stopped  by  the  court 

WiLLSS,  J. — I  am  of  opinion,— and  my  Brother  Williams,  who  was 
obliged  to  go  to  Chambers^  desired  me  to  say  that  he  concurred  with 
us, — that  this  plea  cannot  be  sustained.  The  plea  sets  up  the  excep- 
tion of  res  judicata,  and  therefore  must  show  either  an  actual  merger 
or  that  the  same  point  has  already  been  deoided  between  the  same 
parties.  This,  I  apprehend,  is  clear  from  the  authority  of  Gomyns's 
jDigest,  Action  (K.  1.),  and  the  following  divisiona.    But  it  is  unneoes- 


108  NELSON  V.  COUCH.    T.  V.  1863. 

Bary  to  refer  to  the  ancient  authorities,  further  than  to  say  that  they 
are  entirely  consistent  with  the  modern  ones,  as  well  as  with  the  rule 
of  the  Civil  law.  Where  the  cause  of  action  is  the  same,  and  the 
plaintiflF  has  had  an  opportunity  in  the  former  suit  of  recovering  that 
which  he  seeks  to  recover  in  the  second,  the  former  recovery  is  a  har 
*1091   *^  ^^^  latter  *action.    To  constitute  such  former  recovery  a  har, 

J  however,  it  must  be  shown  that  the  plaintiflF  had  an  opportu- 
nity of  recovering,  and  but  for  his  own  fault  might  have  recovered,  in 
the  former  suit  that  which  he  seeks  to  recover  in  the  second  action. 
Every  one  is  familiar  with  the  case  of  a  party  who  brought  an  action 
for  the  recovery  of  1000?.,  and  for  default  of  evidence  recovered  5?. 
only,  and  then  brought  a  second  action  to  recover  the  balance ;  and 
the  recovery  in  the  former  action  was  held  to  be  a  bar  to  the  latter,  qu 
the  ground  that  the  plaintiff  had  had  an  opportunity  of  recovering  in 
the  first  action  the  whole  of  his  demand,  and  that,  regard  being  had  tt) 
the  shortness  of  life,  it  was  unreasonable  to  allow  a  defendant  to  be 
vexed  a  second  time  for  the  same  cause.(a)  But,  in  order  that  it  may 
be  a  bar,  the  circumstances  must  be  such  that  the  plaintiff  might  have 
recovered  in  the  former  suit  that  which  he  seeks  to  recover  in  tfco 
second.  The  authorities  in  the  Civil  law  upon  this  subject  are  col- 
lected by  Vice-Chancellor  Knight  Bruce  in  a  very  remarkable  jud^(* 
ment  in  a  case  of  Barrs  v.  Jackson,  1  Y.  &  C.  C.  C.  588  et  seq.(6)  If 
that  be  the  true  principle,  let  us  see  what  the  former  suit  here  w.is. 
Now,  the  former  suit,  as  explained  in  the  judgment  of  the  Privy 
Council  in  the  case  of  The  Bold  Buccleugh,  7  Moore's  P.  C.  267,  was 
for  the  purpose  of  establishing  a  maritime  lien  of  the  plaintiff  by 
reason  of  the  misconduct  of  the  owners  of  the  vessel  which  had  caused 
the  damage,  and  a  proceeding  which  had  for  its  object  the  obtaining 
from  the  proceeds  (or  the  bail)  satisfaction  for  the  injury  inflicted. 
What  is  the  object  of  the  present  action  ?  It  is  to  recover  compensa- 
tion from  the  defendants  for  the  damages  which  the  plaintiffs  hav^ 
*1101  sustained  by  reason  of  the  ♦injury  done  to  their  ship.    It  is 

•'  obvious  that  these  two  are  not  identical,  unless  the  proceeds  of 
the  sale  of  the  defendants'  vessel  are  equal  to  or  exceed  the  amount 
of  the  damages  sustained  by  the  plaintiffs'  vessel.  This  plea  does  not 
supply  us  with  the  means  of  ascertaining  that  fact:  there  is,  therefore, 
an  entire  absence  of  the  essential  part  of  a  plea  of  res  judicata.  It  is 
a  condition  of  such  a  plea  that  it  should  show  that  the  first  proceeding 
was  one  in  which  the  plaintiff  might  have  recovered  that  compensa- 
tion which  he  seeks  to  recover  in  the  second.  We  have  been  pressed 
by  Mr.  Brett  to  say  that  the  former  judgment  must  necessarily  oe  taken 
to  have  been  for  the  whole  of  the  damages  which  the  plaintiffs  have 
sustained.  That,  however,  would  I  think  be  putting  a  novel  and 
inconsistent  construction  upon  the  judgment  of  the  Admiralty  Court. 
It  comes  to  this.  Here  is  a  lien  which  it  requires  the  intervention  of 
the  court  to  make  available,  by  decreeing  a  sale.  If  a  person  having 
an  ordinary  lien  upon  a  chattel;  with  a  power  of  sale,  whether  bv 
agreement,  or  by  act  of  parliament,  were  to  sell  it  for  a  sum  which 
satisfied  only  one-half  of  the  debt,  would  he  be  prevented  from  suing 
in  a  court  of  law  for  the  recovery  of  the  other  half?    Clearly  no. 

(a)  Sm  Barber  «.  Lunb,  8  C.  B.  V,  8.  95  (B.  C.  L.  B.  roL  QS). 
(»)  And  tet  Bam  v.  JMkMB,  1  PhlUlpt  W». 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        110 

Then,  why  should  the  plaintiflFs  be  precluded  here?  Several  cases 
have  been  referred  to,  where  judges  of  great  eminence  and  experience 
have  refused  to  allow  a  proceeding  in  personam  against  the  owner  in 
the  Admiralty  Court  to  be  engrafted  upon  a  proceeding  in  rem,  saying 
that  it  was  contrary  to  the  practice  of  that  court.(a)  It  may  very  well 
be,  looking  to  the  *reluctance  expressed  by  Sir  William  Scott,  r#i-i  i 
tn  the  case  of  the  Fortitudo,  2  Dods.  Adm.  R.  58,  to  permit  a  '- 
second  proceeding  to  enforce  payment  of  bottomry-bonds,  after  the 
abandonment  of  a  former  suit  instituted  for  the  same  purpose,  that 
there  is  something  in  the  constitution  and  practice  of  the  Admiralty 
Court  which  militates  against  a  proceeding  like  this.  But  there  is 
certainly  no  such  reluctance  in  the  common-law  courts.  Further,  there 
is  the  authority  of  Dr.  Lushington  in  the  case  of  The  Hope,  Hepburn, 
1  W.  Rob.  Adm.  Cas.  154,  that  it  is  not  competent  for  the  court  to 
eii.5raft  upon  a  proceeding  in  rem  a  personal  action  against  the  master 
(also  a  part-owner),  to  make  good  the  excess  of  damage  beyond  the 
proceeds  of  the  ship.  The  learned  judge  there  expressly  based  his 
judgment  upon  the  general  principles  upon  which  the  proceedings  in 
iho  Admiralty  Court  are  conducted.  But,  in  the  case  of  The  John 
and  Mary,  Swabey's  Adm.  Rep.  471,  the  plaintifif,  having  sued  in  a 
cause  of  collision  at  common  law,  and  recovered  a  verdict,  was  allowed, 
insolvency  intervening,  to  assert  his  lien  in  the  Admiralty  Court  upon 
the  ship,  even  after  she  had  been  transferred  to  a  third  party.  It 
w^ould  seem  to  be  a  very  extraordinary  and  somewhat  inconsistent 
thing,  if  the  proceeding  in  personam  should  be  held  no  bar  to  a  sub- 
sequent proceeding  in  rem,  and  yet  the  proceeding  in  rem  should  be 
held  a  bar  to  a  subsequent  proceeding  in  a  common-law  court  to  recover 
what  the  {daintiff  had  failed  to  recover  in  the  former  suit.  I*  must 
oomfess  I  see  no  reason  why  the  plaintifl&  should  *not  be  al-  r»i -jo 
lowed  to  recover  the  balance  of  the  damage  they  have  sus-  ^ 
taiued  by  a  proceeding  in  this  court.  Mr.  Brett  did  not  very  much 
rely  on  the  Merchant  Shipping  Act.  No  doubt  he  will  have  the  full 
b'^nefit  of  its  provisions  on  a  future  occasion. 

IJyleSj  J. — I  am  of  the  same  opinion.  This  is  like  the  case  of  a 
m»a  who,  having  a  debt  secured  by  a  pledge  or  mortgage,  necessarily 
resorts  to  legal  proceedings  to  make  the  pledge  available.  Having 
done  so,  and  thus  realized  only  a  portion  of  his  debt,  I  see  no  reason 
why  he  should  not  have  recourse  to  a  common-law  court  for  the 
recovery  of  the  residue.  The  right  to  proceed  in  the  Admiralty  Court 
in  rem,  after  the  personal  remedy  has  proved  abortive,  has  been  twice 
recognised  in  Swabey's  Admiralty  Reports, — once  in  the  case  of  the 
master's  wages  (The  Bengal,  p.  468),  and  again  in  the  case  of  a  col- 
lision (The  John  and  Mary,  p.  471).  The  only  difficulty  here  is,  that 
the  damages  may  exceed  the  value  of  the  ship.  The  defendants,  how- 
ever, could  not  plead  to  damages :   they  could  only  rely  upon  the 

(«)  "T1i«  warrant  of  arrest,"  aays  Sir  William  Seott  in  that  case,  «is  confined  to  the  ship; 
it  goes  no  farther.  It  appears  to  me,  therefore,  that  no  personal  liability  beyond  thai  value 
eoold  be  engrafted  npon  sneh  a  mode  of  proceeding ;  and  for  this  obyious  reason,  that,  if  I  were 
to  engraft  such  personal  responsibility  npon  the  owner,  the  original  process  woold  not  Justify 
inch  proceeding.  Not  only  the  original  process,  but  the  appearance  given  by  the  individual 
himself,  would  not  justify  it,  because  he  has  appeared  only  to  protect  'tis  interest  in  the  ship, 
both  by  the  form  of  the  warrant  and  the  form  of  his  appearance." 


112 


NELSON  V.  COUCH.    T.  V.  1863. 


decree  in  the  former  suit  as  a  bar.    And,  for  the  reasons  already  given, 
I  think  it  is  no  good  plea  in  bar.  Judgment  for  the  plaintiflFs. 


That  the  partial  recovery  of  a  debt 
obtained  by  a  resort  to  a  pledge^  does 
not  preclude  the  creditor  from  suing 
for  the  residue  of  his  claim,  which  was 
the  point  determined  in  the  principal 
case,  is  also  involved  in  the  decision  of 
Ayers  v.  Watson,  where  the  right  to 
resort  to  additional  security  for  the 
debt  was  not  only  conceded  as  a  re- 
medy independent  of  the  controversy, 
but  was  assumed  as  the  ground  upon 
which  an  admission  made  during  the 
trial  that  the  creditor  had  additional 
security,  was  held  not  to  be  an  estoppel. 
The  undercurrent  of  the  argument  in 
favour  of  an  estoppel,  was  that  as  the 
creditor  might  avail  himself  of  the 
security,  it  should  go  in  reduction  of 
the  amount  to  be  recovered,  and  would 
thus  constitute  a  partial  defence.  But 
the  court  refused  to  entertain  the  pro- 
position that  the  security  ought^  before 
it  was  collected,  to  be  treated  as  a  fund 
which  should  contribute  to  the  liqui- 
dation of  the  debt;  and  unless  they 
maintained  that  notion,  the  existence 
of  the  security  did  not  become  mate- 
rial, and  the  admission,  in  consequence, 
being  irrelevant,  could  under  no  cir- 
cumstances operate  as  an  estoppel.  The 
case  was  this :  A.  secured  a  debt  by 
mortgaging  a  ship  to  B.,  who  took  pos- 
session ;  C.  obtained  judgment  against 
A.  and  levied  on  the  ship;  B.  replevied, 
and  C.  defending  in  sheriff's  name, 
called  A.,  who  testified  that  he  had  also 
given  B.  a  ground-rent  mortgage  as 
additional  security  for  the  debt.  A. 
was  held  not  estopped  by  this  admis- 
sion in  a  suit  on  the  ground-rent  mort- 
gage from  denying  that  the  mortgage 
was  a  security  for  the  debt :  25  Leg. 
Int.  (Supreme  Court  of  Pa.  1868)  316. 


It  is  mentioned  incidentally  in  the 
decision  that  the  defendant  Watson  had 
included  in  the  sum  recovered  by  him 
in  the  New  York  replevin  suit,  the 
92800  secured  by  the'ground-rent  mort- 
gage as  a  part  of  the  debt  covered  hy 
the  mortgage  on  the  ship.  Since  this 
remark  was  made,  however,  the  New 
York  Court  of  Appeals  has  reversed 
the  judgment  by  the  Supreme  Court, 
on  the  ground  that  the  judge's  charge 
was  inconsistent  with  the  evidence; 
which  consisted  of  the  testimony  of 
Maximilian  Goepp,  Esq.,  who  declared 
the  mortgage  invalid  by  the  law  of 
Pennsylvania.  The  judge  ignored  this 
testimony,  and  charged  the  jury  tlut 
the  mortgage  was  under  the  circuos- 
stances  valid  by  the  law  of  Pennsyl- 
vania. The  Court  of  Appeals  evidently 
concurred  in  the  accuracy  of  the  judge's 
statement  of  the  law  of  Pennsylvania,  bat 
pronounced  it  unwarranted  by  the  evi- 
dence :  Watson  v.  Campbell,  New  York 
Daily  Transcript,  Jan.  15,  1869.  It 
has,  from  the  earliest  times,  been  recog- 
nised in  Pennsylvania  as  one  of  the 
exceptions  to  the  rule  which  requires 
an  immediate  change  of  possession  that 
the  mortgage  of  a  ship  at  sea  is  valid, 
provided  the  mortgagee  takes  posses- 
sion as  soon  after  her  arrival  as  he  con- 
veniently can :  Morgan's  Ez'rs  v.  Bid- 
die,  1  Yeates  (1791)  3. 

Goodrich  v.  The  City,  was  the  con- 
verse of  the  principal  case.  The  plain- 
tifif  there  sought  first  to  recover  at 
common  law  in  the  state  courts  for  the 
loss  of  his  vessel,  and  subsequently  he 
endeavoured  to  recover  for  the  same 
loss  in  admiralty,  but  was  precluded 
by  the  judgment  against  hun  in  th» 
state  court:  6  Wall.  (1866)  566. 


COMMON  BENCH  BEPORTS.    (16  J.  SCOTT.    N.  S.)       J 13 


♦CLAUDE  BOUILLON  et  C'«  v.  LUPTON.    June  22.     ['US 

Tbree  steamers,  the  Bourdon,  the  Papin  No.  1,  and  the  Papin  No.  6,  which  were  intended 
Sor  the  naTigation  of  the  Danube,  were  insured  "at  and  from  Lyons  to  Galatz/'  with  leave  to 
eall  at  all  poru  and  places  in  the  Mediterranean  for  all  or  any  purpose,  beginning  the  adventure 
at  Lyons,  itc,  with  a  declaration  that  "  it  should  be  lawful  for  the  said  ships  to  proceed  and 
■ail  to  and  touch  and  stay  at  any  ports  or  places  whatsoever,  and  with  leave  to  tow  and  be 
towed,  without  being  deemed  any  deviation,"  Ac, — toarranttd  to  kail  on  or  be/ore  the  15th  of 
Aiff»9t,  1861.  . 

The  Papin  No.  6  left  Lyons  on  the  24th  of  July,  and  arrived  at  Marseilles  on  the  30th.  The 
Bourdon  and  Papin  No.  1  left  Lyons  on  the  2d  of  August,  and  arrived  at  Marseilles,  the  former 
on  the  7tb,  the  latter  on  the  8th.  All  three  vessels  were  in  a  fit  and  proper  state  for  the  voyage 
down  the  Rhone  to  Marseilles,  but,  from  the  nature  of  the  navigation,  they  could  not,  on  leav- 
ing Lyons,  be  in  a  state  of  readiness, — as  to  masts  and  sails,  chains  and  anchors,  sea  crew,  &o  , 
—for  the  sea  portion  of  the  voyage  to  Qalatz. 

They  all  left  Marseilles  properly  manned  and  equipped  for  the  residue  of  the  voyage  on  the 
23d  of  August, — the  intermediate  time  having  been  consumed  in  the  sea-equipment,  and  in  pro- 
earing  the  surveys  and  permit  to  depart  required  by  the  French  law,  which  could  only  bo 
obtained  at  Marseilles.    This  delay  the  jury  found  not  to  have  been  unreasonable : — 

Held,  that  both  the  implied  warranty  of  sea- worthiness,  and  the  express  warranty  to  sail  on 
or  before  the  15th  of  August,  were  complied  with. 

As  to  the  Papin  No.  6,  which  arrived  at  Marseilles  on  the  30th  of  July,  it  appeared  that  she 
might  have  been  got  ready  for  sea  several  days  earlier  than  she  was,  but  that  the  captain  deemed 
it  prudent  to  detain  her  at  Marseilles  in  order  that  all  three  vessels  might  depart  in  company. 
The  jury  having  found  that  this  was  a  reasonable  cause  of  delay  as  to  that  vessel,— the  crnirt 
refused  to  disturb  their  verdict 

This  was  an  action  brought  by  the  plaintiffs,  a  company  duly  ccm- 
stituted  and  established  in  Paris  as  a  socidt^  en  commandite  accordi/i|v; 
to  the  laws  of  France,  and  known  s^  the  Franco-Serve  Company,  upon 
three  policies  of  insurance. 

The  first  count  of  the  declaration  stated,  that,  by  a  policy  of  insur- 
ance, bearing   date   the  6th  of  September,  1861,  the   plaintiffs,  by 
Messrs.  Morice  &;  Dixey  as   their  agents,  caused   themselves  to  be 
insured,  lost  or  not  lost,  at  and  from  Lyons  to  Oalatz,  and  while  there 
for  ten  days,  with  leave  to  call  at  all  ports  and  places  in  the  Mediter- 
ranean for  all  or  any  purpose,  upon  the  body,  tackle,  apparel,  ord- 
nance, munition,  artillery,  boat,  and  other  furniture  of  and  in  the  ship 
or  steamer  Bourdon,  beginning  the  adventure  at  Lyons  as  above,  and 
continuing  the  same  during  the  said  voyage  and  until  the  said  ship 
and  premises  should  be  arrived  at  Galatz,  and  while  there  for  ten  days, 
against  perils  of  the  seas  and  certain  other  perils  and  adventures  as 
therein  mentioned  :  and  it  was  thereby  *declared  that  it  should   r^-i  1 4 
be  lawful  for  the  said  ship  and  premises  in  that  voyage  to  pro-   •■ 
ceed  and  sail  to  and  touch  and  stay  at  any  ports  or  places  whatsoever 
and  wheresoever,  and  with  leave  to  tow  and  be  towed,  without  being 
deemed  any  deviation,  and  without  prejudice  to  that  insurance;  and 
that  the  said  ship  and  premises  were  and  should  be  valued  at  **  On  hull, 
&c.,  valued  3000?.;  on  machinery,  valued  3000/.,— 6000?. ;"  to  pay  aver- 
age on  each  as  if  severally  insured,  and  general  average  as  per  foreign 
statement,  if  so  made  up :  And  by  the  said  policy  the  said  ship  and  pre- 
mises were  warranted  free  from  capture  and  seizure  and  the  conse- 
quences of  any  attempt  thereat :  And  the  said  ship  was  warranted  to  sail 
<m  or  be/ore  the  loth  day  of  August,  1861 :  And  by  a  memorandum  there 
under  written  the  said  ship  and  premises  were  warranted  free  from 
average  under  3  per  cent,  unless  general  or  the  ship  be  stranded :  Aver- 
ment, that  the  defendant  had  notice  of  all  the  premises,  and  thereupon. 


114  BOUILLON  V.  LUPTON.    T.  V.  1863. 

in  consideration  of  a  certain  premium  paid  to  him  by  the  plaintiffs  for 
the  insurance  of  lOOZ.  Upon  the  said  ship  and  premises  in  the  said  policy 
mentioned,  the  defendant  subscribed  tne  said  policy  for  the  said  sum 
of  lOOZ.,  and  became  an  insurer  to  the  plaintiffs  of  and  upon  the  said 
ship  and  premises  to  that  amount,  And  upon  the  terms  and  conditions 
of  the  said  policy;  that  the  plaintiffs  were  then  and  from  that  time 
until  and  at  the  time  of  the  loss  thereinafter  mentioned  interested  in 
the  said  ship  and  premises  to  the  amount  of  all  the  moneys  by  them 
insured  thereon;  that  the  said  Morice  &  Dixey  effected"  the  said  policy 
as  their  agents  and  on  their  behalf;  and  that  the  plaintiffs  performed 
and  complied  with  all  warranties  in  the  said  policy  contained  ;  that  the 
said  ship  with  the  premises  on  board  thereof  departed  on  her  said 
voyage,  and  while  she  was  proceeding  on  the  said  voyage,  and 
*11^1  *^^r'^o  ^'*®  continuance  of  the  said  risk,  the  said  ship  and 
-I  premises  were,  by  perils  insured  against,  wholly  lost ;  and  that 
th.^  plaintiffs  did  all  things  on  their  part  to  be  done,  and  all  things 
h  tppened,  and  all  times  elapsed,  to  entitle  the  plaintiffs  to  be  paid  by 
On  defendant  the  said  sum  of  lOOZ.  so  insured  by  him  as  aforesaid; 
bvt  that  the  defendant  had  not  paid  the  same. 

The  second  count  was  upon  a  policy  in  the  like  terms  and  for  the 
jjyMe  amount  on  the  ship  or  steamer  "Papin  No.  1 :"  and  the  third 
CO  mt  was  upon  a  policy  in  the  like  terms  and  for  the  same  amount 
cu  the  ship  or  steamer  "  Papin  No.  6."  There  was  also  a  count  for 
mc^ney  received  by  the  defendant  for  the  use  of  the  plaintiffs,  and  for 
money  found  due  on  accounts  stated. 

The  defendant  pleaded,  as  to  the  first,  second,  and  third  counts, — firsts 
that  the  plaintiffs  did  not  cause  themselves  to  be  insured  as  in  those 
CO  ants  respectively  mentioned,  nor  did  the  defendant  become  an 
ip.Murer  to  the  plaintiffs  as  in  those  counts  respectively  mentioned,  as 
therein  respectively  alleged, — secondly,  that  the  plaintiffs  were  not 
interested  in  the  respective  subject-matters  of  insurance  in  those  counts 
mentioned,  as  therein  respectively  alleged, — thirdly,  that  the  said 
ships  and  premises  respectively  did  not  depart  on  the  voyages  insured, 
a «  in  those  counts  respectively  alleged, -^fourthly,  that  the  said  ships 
a-'d  premises  respectively  were  not,  nor  was  any  part  of  the  same 
respectively,  lost  by  the  perils  insured  against,  as  in  those  counts 
respectively  alleged, — fifthly,  that  the  said  ships  and  premises  respec- 
tively did  not  sail  on  or  before  the  15th  day  of  August,  1861,  within 
the  true  intent  and  meaning  of  the  warranties  contained  in  the  said 
policies  respectively, — sixthly,  that,  at  the  time  when  the  said  ships 
♦1161  ^^^  premises  respectively  departed  and  set  *sail  on  the  voyages 
^  respectively  insured  by  the  said  policies  respectively,  they  were 
respectively  not  seaworthy  for  the  respective  voyages, — seventhly, 
that,  before  the  respective  losses  in  those  counts  mentioned,  the  said 
ships  and  premises  respectively  wrongfully  and  improperly  delayed 
proceeding  upon  and  deviated  from  the  voyages  respectively  insured, 
— and,  to  the  money  counts,  eighthly,  never  indebted.    Issue  thereon. 

The  cause  was  tried  before  Cockburn,  C.  J.,  and  a  special  jury,  at 
the  last  Spring  Assizes  at  Kingston,  when  the  following  facts  were 
proved  and  admitted: — The  plaintiffs  are  a  French  socidte  en  com- 
mandite, whose  object,  amongst  other  things,  was,  to  run  steamers  on 
the  river  Danube.     For  this  purpose  they  purchased  the  steamers  in 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  8.)        Il6 

question,  the  Bourdon,  the  Papin  No.  1,  and  the  Papin  No.  6,  which 
were  or  had  been  river  steamers  built  for  and  employed  in  the  navi- 
gation of  the  Rhone,  and  were  then  at  Lyons:  and,  in  order  to 
strengthen  them  and  put  them  into  condition  for  performing  the  sea- 
voyage  to  the  Danube,  they  had  them  (and  a  fourth  yessel  called  the 
Creuzot)  repaired  under  an  agreement  whereby  the  three  first-named 
vessels  were  to  be  completed  and  ready  to  depart  by  the  15th  of 
July,  1861. 

In  the  month  of  July,  1861,  the  plaintiffs,  through  their  agents, 
effected  the  three  policies  of  insurance  in  question  on  the  hull  and 
machinery  of  the  three  steamers  Papin  No.  1,  Papin  No.  6,  and  Bour 
don,  then  at  Lyons.  The  policies  were  subscribed  in  the  usual  manner 
by  the  defendant,  an  underwriter  at  Lloyd's. 

The  steamer  Papin  No.  6  left  Lyons  on  the  24th  of  July,  and  the 
Papin  No.  1  and  the  Bourdon  on  the  2d  of  August,  1861. 

The  first  part  of  the  voyage  from  Lyons  to  Galatz  consists  of  a 
river  voyage  down  the  Rhone  for  a  *distance  of  about  three  hun-  r#i  1 7 
dred  miles,  viz.  from  Lyons  to  Aries,  at  or  near  the  mouth  of  ^ 
the  Rhone.  This  navigation  can  be  performed  only  by  vessels  of 
light  draught  and  without  masts  or  standing  rigging,  in  consequence 
of  the  shallowness  of  the  water  and  of  there  being  several  bridges 
across  the  Rhone;  and,  according  to  the  French  law,  it  is  necessary 
that  there  should  be  a  special  permit  for  this  river  voyage,  and  that 
the  vessel  should  be  manned  by  a  competent  river  crew. 

It  was  admitted,  on  behalf  of  the  defendant,  that  the  vessels  were 
when  they  left  Lyons,  and  continued  to  be  throughout  the  river  navi- 
gation, in  a  fit,  proper,  and  sea- worthy  state  and  condition  for  the 
unvigation  of  the  river. 

The  vessels,  on  leaving  Lyons,  had  their  masts  on  board,  but  none 
of  the  said  masts  up;  it  being,  as  before  mentioned,  impossible  to 
descend  the  Rhone  with  the  masts  up,  on  account  of  the  bridges 
over  the  river.  The  steamers,  at  the  time  they  left  Lyons,  were  not 
furnished  with  rigging,  sails  of  any  kind,  compasses,  chains,  or  sea- 
anchors, — all  of  which  were  indispensable  for  the  voyage  to  Galatz; 
and  they  were  manned  with  river  crews,  and  not  with  sea  crews.  The 
''^gg^ng*  sails,  compasses,  chains,  and  sea  anchors  for  such  voyage 
could  not  be  purchased  at  Lyons,  but  might,  if  necessary,  have  been 
purchased  at  Marseilles  or  some  other  seaport,  and  sent  up  to  Lyons. 
A  crew  for  a  sea  voyage  could  not  be  procured  at  Lyons.  Chains 
and  sea-anchors  could  not  have  been  carried  on  board  the  said  steamers 
during  the  river  navigation,  on  account  of  the  draught  of  water. 

The  steamer  Papin  No.  6  reached  Aries  on  the  28th  of  July,  left  it 
on  the  29th,  and  reached  Marseilles  on  the  same  night,  and  was  noti- 
fied on  the  following  day.  The  Bourdon  reached  Aries  on  the  6th  of 
August,  left  Aries  on  the  same  day,  arrived  at  Marseilles  on  the  7th, 
and  •was  notified  on  the  following  day.  The  Papin  No.  1  r#-«^ g 
reached  Aries  on  the  8th  of  August,  left  Aries  on  the  same  '■ . 
day,  and  arrived  at  Marseilles  and  was  duly  notified  on  the  9th. 

It  was  necessary,  for  the  reasons  and  purposes  hereinafter  men- 
tioned, that  all  the  three  steamers  should  proceed  to  and  stay  at  Mar- 
seilles. 

Aries  is  a  port  on  the  Rhone  a  little  above  the  mouth  of  the  river, 


118  BOUILLON  V.  LUPTON.    T.  V.  1863. 

and  Marseilles  is  distant  about  thirty  miles  from  the  mouth  of  the 
Ehone.  According  to  the  French  law,  the  river  navigation  stops  at 
Aries ;  from  Aries  to  Marseilles  is  considered  a  sea  voyage.  The 
voyage  between  these  two  places  is  a  coasting  voyage  of  about  thirty- 
two  English  miles. 

The  three  steamers  left  Aries  in  the  same  condition  (except  as  to 
the  crews)  in  which  they  left  Lyons.  They  were  not,  nor  was  either 
of  them,  manned  with  complete  sea  crews ;  but  some  additional  sailors 
were  taken  on  board  each  of  them  at  Aries,  to- assist  the  several  river 
crews  in  bringing  the  steamers  round  from  Aries  to  Marseilles;  and 
each  vessel  was  under  the  charge  of  a  skilled  and  competent  sea  cap 
tain. 

Masts,  ropes,  chains,  and  sea-anchors  could  have  been  obtained  at 
Aries,  but  not  so  conveniently  or  expeditiously  as  at  Marseilles.  A 
sea  crew  might  be  obtained  at  Aries.  Compasses  and  sails  could  only 
be  obtained  at  Aries  by  ordering  them  from  Marseilles.  There  art. 
no  persons  at  Aries  competent  to  adjust  the  compasses,  which  wa.'i 
necessary  in  the  case  of  each  of  the  three  steamers. 

When  the  steamers  left  Aries,  and  throughout  the  voyage  to  Mai  • 
seilles,  they  were  in  fit  and  suflScient  state  and  condition  to  perform 
that  portion  of  the  voyage;  but  they  were  not  sea-worthy  for  tl.<5 
voyage  to  Galatz :  and  some  alteration  in  their  rudders  was  nec^f.- 
sary. 

♦1191  *^^^  French  law  requires  that  every  vessel,  before  putting: 
-'  to  sea,  should  undergo  two  inspections  by  a  commission  of 
"capitaines  visiteurs;"  that  she  should  receive  on  the  first  occasior  a 
certificate  of  survey  enumerating  what  (if  any)  repairs,  alterations,  or 
additions  are  necessary  to  render  her  fit  to  put  to  sea ;  and  that,  (ri 
the  second  inspection,  she  should  receive  a  certificate  of  fitness  "^br 
sea,  reciting  the  requisitions  made  in  the  first,  and  specifying  that 
they  had  severally  been  complied  with.  In  all  cases  the  two  inspec- 
tions are  indispensable,  even  though  upon  the  first  inspection  no  re 
pairs,  alterations,  or  additions  may  have  been  ordered.  The  French 
law,  in  the  case  of  a  steamer,  further  requires  that  there  should  be 
another  inspection  by  other  officers,  to  test  her  fitness  for  sea  in  re- 
spect to  her  machinery,  and  to  certify  thereto.  When  these  and 
other  provisions  of  the  law  have  been  complied  with,  the  vessel,  un- 
less she  is  navigating  backwards  and  forwards  between  fixed  ports 
under  a  regular  license,  must  obtain  a  "permit  de  partir"  before  she 
will  be  allowed  to  leave  port. 

The  commission  of  inspection  for  all  ships  and  steamers  to  sail 
from  the  Mediterranean  coast  of  France,  sits  at  Marseilles,  where  the 
commissioners  reside. 

In  the  case  of  the  three  steamers  in  question,  the  several  inspec- 
tions and  certificates  above  enumerated  were  necessary ;  and  the 
same  could  not  have  been  had  at  any  other  place  than  Marseilles. 

Upon  the  arrival  of  the  vessels  respectively  at  Marseilles,  the  fur- 
nishing them  and  fitting  them  out  with  what  was  required  for  the 
voyage  to  Galatz  was  commenced  and  proceeded  with.  The  masts 
and  rigging  were  set  up ;  and  the  sails  were  put  on  board  and  fixed. 
The  measurements  for  these  sails  had  been  taken  at  Lyons  by  a  ship- 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        1J9 

broker  of  Marseilles  in  the  early  part  of  *July ;  and  the  sails  r»i  90 
were  ordered  to  be  and  were  ready  at  Marseilles  for  the  seve-   ^ 
ral  vessels  at  the  times  of  their  respective  arrivals  at  that  port.  Chains 
and  sea-anchors  were  also  put  on  board  the  several  steamers,  and  their 
compasses  were  adjusted. 

The  crew  of  the  Papin  No.  6  were  hired  and  went  on  board  her  at 
Marseilles  on  the  30th  of  July ;  that  of  the  Bourdon  were  hired  and 
went  on  board  her  at  Marseilles  on  the  7th  of  August ;  and  that  of 
the  Papin  No.  1  were  hired  and  went  on  board  her  about  the  16ch  or 
17th  of  August. 

Application  was  made  on  the  13th  of  August  to  the  "capitaines 
visiteurs"  to  inspect  all  the  three  vessels.  The  first  survey  of  those 
officers  took  place  on  the  16th  of  August.  The  certificates  of  such 
surveys  were  signed  on  that  day,  and  registered  in  the  registry  office 
of  the  Tribunal  de  Commerce  at  Marseilles  on  the  20th.  The  second 
survey  of  the  "capitaines  visiteurs"  on  each  of  the  three  vessels  took 
place  on  the  19th  of  August;  and  the  certificates  of  such  last-men- 
tioned surveys  were  registered  as  required  by  the  French  law  on  the 
20th. 

The  "  r61e  d^^quipage,"  or  muster-roll,  was  presented  for  signature 
and  duly  signed  on  the  19th  of  August.  The  French  law  requirijs 
that  the  said  r6le  d'^quipage  should  be  signed  before  the  sailing 
license  is  granted.  The  sailing  license  or  permit  de  partir  was  appli«3d 
for  on  the  19th  of  August ;  and  a  provisional  permit,  which  was  suffi- 
cient to  authorize  the  vessels'  sailing  on  the  voyage,  was  granted  on 
the  20tb. 

The  three  vessels  were  ready  to  sail  for  Galatz  on  the  morning  of 
the  20th  of  August,  and  not  before. 

The  Papin  No.  6  might  have  been  properly  equipped,  certified,  and 
ready  to  sail  from  Marseilles  some  days  before  the  20tn  of  August :  but 
her  equipment  was  not  hastened  as  much  as  it  might  have  been,  because 
*it  was  deemed  prudent  and  reasonable,  for  the  common  inte-  r^ioi 
rests  of  the  underwriters  and  the  assured,  that  she  should  be  ^ 
delayed  for  the  purpose  of  sailing  in  company  with  the  other  two 
vessels.     A  captain  m  the  French  navy  gave  evidence  to  this  effect. 

The  three  vessels  were  detained  by  stress  of  weather  at  Marseilles 
from  the  20th  of  August  until  the  23d,  on  which  day  they  set  sail  in 
company. 

It  was  admitted  on  behalf  of  the  defendant,  that,  at  the  time  the 
three  vessels  so  left  Marseilles,  they  were  in  all  respects  sea- worthy  for 
the  voyage  to  Galatz.  No  delay  or  deviation  took  place  from  the  time 
of  the  vessels'  leaving  Marseilles. 

The  three  steamers  all  went  down  together  in  the  Black  Sea  on 
the  14th  of  October,  1861,  the  first  day  they  got  into  the  Black  Sea, 
and  within  a  day's  sail  of  their  destination,  and  were  totally  lost. 

The  Lord  Chief  Justice  left  it  to  the  jury  to  say  whether  there  was 
an  unreasonable  delay  in  the  fitting  out  of  all  or  any  of  the  said  three 
Btearaers  at  Marseilles,  and  requested  the  jury,  in  the  e\ent  of  their 
thinking,  that,  in  the  case  of  the  Papin  No.  6,  there  had  been  unrea- 
sonable delay,  to  find  specially  whether  it  was  prudent  and  reasonable, 
for  the  common  interest  of  the  underwriters  and  the  assured,  that  the 


Iftl  BOUILLON  i;.  LTJPTON.    T.  V.  1863. 

I'ipin  No.  6  should  be  delayed  for  the  company  of  the  other  two 
vessels. 

The  jury  found  that  there  was  no  unreasonable  delay  as  regarded 
the  Papin  No.  1  and  the  Bourdon ;  and,  as  regarded  the  Papin  No.  6, 
that  the  delay  was  justified  by  the  fact  of  her  waiting  for  the  other 
vessels. 

Upon  these  findings,  his  Lordship  directed  the  verdict  to  be  entered 
for  the  plaintiffs;  reserving  leave  for  the  defendant  to  move  to  enter 
the  verdict  for  him  as  to  all  or  any  of  the  vessels,  upon  the  grounds, — 
♦1921  ^^^^'  ^^^*  ^^®  warranties  as  to  the  sailing  on  or  before  *the  15th 
^  of  August,  1861,  were  not  complied  with, — secondly,  that  the 
vessels  were  bound  to  sail  on  or  before  that  day,  properly  equipped 
for  the  voyage,  without  being  afterwards  delayed  for  the  purpose  of 
preparations  and  being  made  ready  for  the  voyage, — thirdly,  that  the 
vessels  were  not  sea-worthy  at  Lyons,  nor  at  the  time  of  their  com- 
mencing their  voyage  upon  the  open  sea:  and,  as  to  the  vessel  Papin 
No.  6,  on  the  further  ground  that  the  delay  at  Marseilles  in  waiting 
for  the  other  vessels  was  not  justifiable. 

Bovill,  Q.  C,  in  Easter  Term  last,  obtained  a  rule  nisi  accordingly, 
or  for  a  new  trial,  on  the  ground  that  the  verdict  was  against  the  evi- 
dence on  the  last  point,  viz.  as  to  the  Papin  No.  6.  He  cited  Ridsdale 
V.  Newnham,  4  Campb.  Ill,  8  M.  &  Selw.  456,  Pettigrew  v.  Pringle,  8 
B.  &  Ad.  514  (E.  C.  L.  R.  vol.  23),  and  1  Arnould  on  Insurance,  2d 
edit.  643.  [WiLLKS,  J.,  referred  to  Biccard  v.  Shepherd,  14  Moore's 
P.  C.  471.] 

Horace  Lhyd  and  Wathin  Williams  showed  cause. — Two  questions 
MV.  presented  for  consideration  in  this  case, — first,  whether  there  has 
l)'3en  a  compliance  with  the  warranty  "  to  sail  on  or  before  the  15th 
<»'/  August," — secondly,  whether  there  was  a  deviation,  more  especially 
OA  the  part  of  one  of  the  vessels,  the  Papin  No.  6,  by  an  unreasonable 
dfilay  at  Marseilles  after  the  commencement  of  the  voyage.  The 
M'fcole  law  upon  the  subject  of  the  warranty  to  sail  on  or  before  a  given 
do.y  will  be  found  in  the  cases  of  Ridsdale  v,  Newnham,  4  Campb.  Ill, 
3  M.  &  Selw.  456,  Pettigrew  v.  Pringle,  8  B.  &  Ad.  514  (E.  C.  L.  R. 
V(»l  23),  Cochrane  v.  Fisher,  2  C.  &  M.  581,  4  Tyrwh.  424  (in  error,  1 
(5  M.  &  R.  809,  5  Tyrwh.  496),  and  Lang  v.  Anderdon,  8  B.  &  0.  495 
(K.  C.  L.  R.  vol.  10),  5  D.  &  R.  898.  The  result  seems  to  be,  that,  in 
oi  der  to  comply  with  a  warranty  to  sail,  the  ship  must  not  only  have 
broken  ground  on  or  before  the  day,  but  she  must  have  done 
♦1231  **^^  ^^^^  *"  intention  of  at  once  proceeding  on  her  sea  voyage, 
^  being  then  in  a  state  of  perfect  readiness  for  it.  Seaworthiness 
is  a  relative  term,  having  reference  to  the  particular  perils  the  ship 
may  be  expected  to  encounter :  Gibson  v.  Small,  4  House  of  Lords 
Cases  353.  Here,  the  insurance  is  for  a  voyage  from  Lyons  to 
Galatz, — Lyons  being  about  three  hundred  miles  up  the  Rhone,  and 
Galatz  about  ninety-five  miles  from  the  mouth  of  the  Danube  (see 
Schilizzi  V.  Derry,  4  Ellis  k  B.  882), — with  leave  to  call  at  all  ports 
and  places  in  the  Mediterranean  for  all  or  any  purpose;  and  it  was 
declared  "  that  it  should  be  lawful  for  the  vessels  to  proceed  and  sail 
to  and  touch  and  stay  at  any  ports  or  places  whatsoever  and  whereso- 
ever, and  with  leave  to  tow  and  be  towed,  without  being  deemed  any 
deviation,  and  without  prejudice  to  the  insurance;"    The  Rhone,  as  is 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        123 

well  known,  and  as  the  underwriters  must  be  assumed  to  have  known, 
is  a  narrow  and  swift  river,  spanned  by  several  bridges,  and  having 
its  course  obstructed  by  shoals  and  mud-banks  which  make  its  navi- 
gation exceedingly  difficult,  and  only  to  be  performed  by  a  vessel 
without  masts  and  having  on  board  a  river  crew.  The  facts  show 
that  the  vessels,  which  all  left  Lyons  before  the  15th  of  August,  1861, 
started  with  everything  on  board  and  in  all  respects  completely  fit  for 
the  voyage  down  to  Aries.  It  appears  also  that  it  was  convenient  in 
the  highest  degree  for  the  vessels  to  go  to  Marseilles  for  some  of  the 
equipment  necessary  for  the  sea  portion  of  their  voyage,  and  absolutely 
essential  that  they  should  go  there  for  some  of  them,  and  especially 
for  the  surveys  required  by  the  French  law  and  for  the  permit  de 
partir,  without  which  they  could  not  have  proceeded  to  sea.  That  the 
vessels  left  Lyons  in  a  fit  state  for  the  prosecution  of  the  voyage  down 
the  river,  is  conceded;  and  it  was  proved  that  what  was  done  at  Mar- 
seilles *was  proper  and  necessary  to  be  done  there;  and  the  [-#194 
jury  have  found  that  there  was  no  unreasonable  delay.  In  ^ 
Dixon  V.  Sadler,  5  M.  &  W.  405,  414,  Parke,  B.,  thus  lays  down  f.he 
law  as  to  the  implied  warranty  of  sea- worthiness, — "  In  the  case  of  an 
insurance  for  a  certain  voyage,  it  is  clearly  established  that  there  is 
an  implied  warranty  that  the  vessel  shall  be  sea- worthy,  by  whicl*  is 
meant  that  she  shall  be  in  a  fit  state  as  to  repairs,  equipment,  nnd 
crew,  and  in  all  other  respects,  to  encounter  the  ordinary  perils  of  Hie 
voyage  insured,  at  the  time  of  sailing  upon  it.  If  the  insuraiice 
atti^ches  before  the  voyage  commences,  it  is  enough  that  the  state  of 
the  ship  be  commensurate  to  the  then  risk  ;(a)  and,  if  the  voyage  be 
such  as  to  require  a  different  complement  of  men,  or  state  of  equipment^  in 
different  parts  of  it,  as,  if  it  were  a  voyage  down  a  canal  or  river,  and 
thence  across  to  the  open  sea,  it  would  be  enough  if  the  vessel  were  at  the 
commencement  of  each  stage  of  the  navigation  properly  mamied  and 
equipped  for  it,^^  Several  cases  are  referred  to  as  establishing  that 
principle:  and  it  received  the  confirmation  of  the  judicial  committee 
of  the  Privy  Council  in  the  recent  case  of  Biccard  v.  Shepherd,  14 
Moore's  P.  0.  471.  In  the  case  of  an  insurance  of  a  vessel  on  a 
voyage  to  the  Greenland  fishery,  it  is  well  known  that  part  of  the 
necessary  equipment,  as  well  as  the  crew,  are  taken  on  board  when 
the  vessel  arrives  at  the  Orkney  Islands.  There,  the  warranty  to  sail 
on  or  before  a  given  day  would  be  complied  with  by  a  departure  in  a 
state  of  fitness  for  that  portion  of  the  voyage.  This  voyage  clearly  is 
one  which  is  divisible  into  distinct  parts  or  stages,  according  to  the 
rule  laid  down  by  Lord  Wensleydale ;  and  it  is  enough  if  the  vessels, 
at  the  time  of  their  departure  from  Lyons,  were,  as  the  jury  have 
*found,  and  as  indeed  the  defendant  admitted,  in  a  fit  state  to  r«i  95 
undertake  the  voyage  to  Aries,  and  fit  on  leaving  Aries  for  the  '- 
voyage  to  Marseilles.  The  rule  laid  down  in  Arnould  on  Insurance,  § 
228,  upon  the  authority  of  Lang  v.  Anderdon,  8  B.  &  0. 495  (E.  0.  L.  R. 
vol.  10),  5  D.  &  R.  393,  Ridsdale  v.  Newnham,  4  Campb.  Ill,  3  M.  & 
Selw.  456,  and  Pettigrew  v.  Pringle,  3  B.  &  Ad.  614  (E.  C.  L.  R.  vol, 
28),  applies  only  to  a  voyage  from  port  to  port  In  the  last- mentioned 
case  the  vessel  put  into  another  port,  and  made  that  for  all  essential 
purposes  the  port  of  departure.    This  is  well  illustrated  by  the  case 

(a)  Annw  V.  Woodaao,  3  T«aii(.  30 ;  Hibbert  v.  Martin,  Park  Ini.  6  adit.  VoL  1,  p.  29f ,  a. 


128  BOUILLON  v,  LUPTON.    T.  V.  1863. 

♦1291  ^^^*  ®^®  ^^^  °^*  ^®^  ^^^^  quantity  of  ballast  (only  fifteen  tons 
J  "instead  of  fifty),  there  being  a  bar  at  the  mouth  of  the  river 
which  the  ship  could  not  have  crossed  with  that  quantity  on  board. 
Boats  were  in  waiting  outside,  on  the  1st  of  September,  to  ship  the 
remainder  of  the  ballast,  and  the  vessel  crossed  the  bar  on  that  day, 
but  struck  in  doing  so,  and  the  master,  to  ascertain  what  damage  she 
had  received,  put  into  an  adjacent  port  without  taking  the  rest  of  his 
ballast,  which  was  not  done  till  the  4th,  and  the  vessel  proceeded  upon 
her  voyage  on  the  8th.  It  was  held  that  the  ship's  dropping  down  the 
river  and  crossing  the  bar  without  her  full  ballast,  was  not  a  sailing  ; 
and  that,  until  the  ballast  was  completed,  she  was  not  ready  for  sea 
within  the  rule  referred  to  by  the  policy.  "  The  general  principle  of 
the  decisions,"  said  Lord  Tenterden,  '*  is  this,  that  if  a  ship  quits  hfe. 
moorings  and  removes,  though  only  to  a  short  distance,  being  per/ecllf 
ready  to  proceed  upon  her  voyage,  and  is  by  some  subsequent  occurrencd 
detained,  that  is  nevertheless  a  sailing :  but  it  is  otherwise,  if,  at  tho- 
time  when  she  quits  her  moorings  and  hoists  her  sails,  she  is  not  in  a 
condition  for  completing  her  sea  voyage."  And  Littledale,  J.,  said  : 
"to  entitle  the  plaintiff*  to  recover,  it  should  have  appeared  that  the 
ship  broke  ground  on  the  1st  of  September,  ready  to  go  to  sea.  She 
required  fifty  tons  of  ballast  to  cross  the  Atlantic,  and  she  had  not 
that  quantity  on  board  till  the  4th  of  September.  It  is  said  that  whe.u 
she  broke  ground  she  had  as  much  ballast  as  she  could  take  withni 
the  bar;  but  that  is  no  excuse;  it  was  the  plaintiff'^s  business  to  put 
himself  in  such  a  situation  as  to  be  sure  of  completing  his  ballast  in 
the  proper  time.  Having  left  it  to  the  last  moment,  he  must  be  liable 
for  the  consequence."  So  here,  the  plaintiffs  should  have  taken  care 
that  the  vessels  should  be  ready  for  sea  by  the  day  named  in  the  war- 
ranty. In  Graham  v.  Barras,  5  B.  &  Ad.  1011  (E.  C.  L.  R.  vol.  28), 
*1301  **  ^'^^P  ^^^  insured  from  April  1st,  1831,  to  January  1st,  1832, 
J  warranted  not  to  sail  foreign  after  the  times  limited  in  certain 
club  rules.  The  rules  or  warranties  of  the  club  limited  the  times  of 
sailing  to  different  parts  of  the  world,  and  by  a  distinct  warranty  it 
was  declared  that  the  time  of  clearing  at  the  Custom  House  should  be 
deemed  the  time  of  sailing,  provided  the  ship  was  then  ready  for  sea. 
The  vessel  insured  was  bound  for  the  Bay  of  Fundy  from  Dublin,  and 
the  last  day  for  sailing,  by  the  rules,  was,  the  1st  of  September.  She 
cleared  out  on  the  31st  of  August,  and  dropped  down  the  Liffby  on 
the  1st  of  September,  with  an  incomplete  crew  (though  a  full  com- 
plement was  engaged  before  the  ship  cleared  out),  to  a  place  within 
the  port  of  Dublin,  where  she  lay  at  anchor  the  rest  of  the  day. 
During  that  day,  the  whole  crew  came  on  board,  and  on  the  2d  she 
proceeded  on  her  voyage,  having  been  prevented  from  doing  so  on  the 
1st  by  an  unfavourable  wind.  She  was  afterwards  lost :  and  in  an 
action  upon  the  policy,  it  was  held  that  the  plaintiff  was  not  entitled 
to  recover,  for  that  the  ship  did  not  actually  sail  till  afler  the  1st  of 
September,  and  that  she  was  not  ready  for  sea  at  the  time  of  clearing 
out,  the  whole  crew  not  being  then  on  board.  These  oases,  it  is  sub- 
mitted,  clearly  show  that  these  vessels  were  bound  to  be  in  a  conditiou 
on  the  15th  of  August  to  begin  the  voyage, — the  entire  voyage, — u.» 
Oalatz ;  and  the  delay  at  Marseilles  for  the  purpose  of  putting  them 
in  that  condition  was  wholly  unjustifiable.     Dixon  i;.  Sadler,  5  M.  & 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)        130 

W.  414,  is  no  authority  for  saying  that  a  voyage  may  be  split  up  into 
distinct  portions  quoad  the  warranty  to  sail  on  or  before  a  given  day  • 
and  all  that  is  laid  down  in  the  judgment  of  Lord  Wensleydale  in 
Biccard  v.  Shepherd,  14  Moore's  P.  0.  471,  is,  that  there  may  be  one 
degree  of  sea- worthiness  for  a  voyage  down  a  canal  or  river,  and 
another  *and  different  one  for  a  voyage  to  be  performed  upon  r*i  oi 
the  open  sea.  [Willes,  J. — I  do  not  see  how  you  give  any  ^ 
application  to  the  language  of  Lord  Wensleydale  in  that  case.  Your 
argument  seems  to  be,  that,  although  it  is  conceded  that  a.  different 
state  of  fitness  or  worthiness  is  required  for  the  river  navigation  from 
that  which  is  required  for  the  sea,  no  time  is  to  be  allowed  for  the 
necessary  change  in  the  condition  of  the  vessels.]  The  plaintiffs  were 
bound  to  have  the  vessels  in  a  fit  state  and  ready  to  proceed  to  sea  by 
the  day  named  in  the  warranty.  It  is  not  pretended  that  this  might 
not  have  been  done  at  Aries. 

As  to  the  vessel  Papin  No.  6,  although  she  arrived  at  Marseilles  on 
the  29th  of  July,  no  attempt  was  made  to  get  her  ready  for  sea  before 
the  7th  or  8th  of  August.  The  reason  assigned  for  this,  was,  that  it 
was  considered  advisable,  having  regard  to  the  safety  of  the  captains 
and  crews,  that  the  three  vessels  should  sail  in  company.  That, 
however,  was  a  delay  for  the  purpose  of  avoiding  a  peril  not  insured 
against :  and  there  was  no  evidence  to  show,  that,  in  case  of  danger 
arising  in  the  course  of  their  passage  from  Marseilles  to  Galatz,  these 
vessels  coiftd  have  assisted  each  other.  The  case,  as  regards  this 
point,  is  precisely  within  the  principle  of  O'Reilly  v.  The  Royal 
Exchange  Assurance,  4  Campb.  246,  and  O'Reilly  v,  Gonne,  4  Campb. 
249.  In  the  former  it  was  held,  that,  where  a  policy  of  insurance 
contains  a  warranty  against  seizure  in  port,  if  the  ship,  to  avoid  such 
seizure,  runs  to  sea  before  she  is  properly  loaded,  and  is  in  conse- 
quence obliged  to  go  to  a  port  out  of  the  course  of  the  voyage 
insured,  the  underwriters  are  not  liable  for  a  subsequent  loss ;  and  m 
the  latter,  where  the  policy  contained  no  warranty  against  seizure, 
the  underwriters  were  held  liable.  At  all  events,  therefore,  there 
must  be  a  verdict  for  the  defendant,  or  a  new  trial,  as  to  the  Papin 
No.  6. 

•Willes,  J.(a) — This  case  presents  some  features  of  novelty:  r#i  qo 
and,  if  the  court  were  of  opinion  that  the  novelty  was  in  the  '■ 
principle  of  law  which  it  is  necessary  to  affirm  for  the  purpose  of 
disposing  of  the  rule,  we  should  certainly  have  taken  time  to  consider 
our  judgment.  But,  as  it  appears  to  us, — upon  full  consideration,  and 
after  having  had  the  advantage  of  a  most  able  and  elaborate  argu- 
ment on  both  sides, — that  the  principle  which  must  determine  the 
case  is  one  which  is  clear  as  well  as  familiar,  we  have  come  to  the 
conclusion  that  it  will  be  better  to  dispose  of  it  at  once, — though, 
fleeing  the  large  amount  involved,  it  would  have  been  more  satisfactory 
to  our  minds  if  the  argument  had  taken  place  before  a  full  court.  The 
parties,  however,  were  anxious  that  the  case  should  be  heard  at  these 
sittings:  and,  if  either  of  them  b*e  dissatisfied  with  our  decision,  thej 
will  not  be  without  remedy. 

The  novelty  and  peculiarity  of  the  case,  so  far  as  the  decisions  are 

(a)  Williams,  J.,  had  left  the  oonrt  for  the  purpose  of  proceeding  to  Chambers  before  Uu 
dose  of  the  argument 

C.  B.  H.  8.,  VOL.  XV,— 7 


132  BOUILLON  v,  LUPTON.    T,V.  1863. 

coDCerned,  consists  in  this,  that,  instead  of  the  voyage  insured  being 
from  a  port  to  another  port  across  the  ocean,  it  commences  by  a  dis- 
tinct navigation  of  some  hundred  miles  down  an  inland  river,  where  the 
conditions  and  the  system  of  navigation  are  wholly  and  entirely  dis- 
tinct from  those  which  apply  to  the  rest  of  tlie  voyage  of  the  vessels 
to  their  port  of  destination.  The  facts  proved  at  the  trial  show  that 
it  was  a  necessity,  regard  being  had  to  the  course  of  business  pursued 
by  persons  using  the  navigation  in  question,  and  to  that  which  must 
be  regarded  in  all  mercantile  transactions,  viz.  the  cost  of  conveyance 
and  labour,  and  the  like,  that  the  vessels  should  upon  starting  from 
Lyons  be  in  a  state  of  preparation  for  the  voyage  down  the  river  to 
*l*iRl    ^^''^''s^^l^^s  only,  but  not  *in  a  state  of  preparation  fit  for  the 

J  voyage  from  Marseilles  to  Galatz.  It  would  be  useless  to  go 
through  all  the  evidence  upon  this  point:  it  is  enough  to  select  one 
striking  fact  which  warrants  that  conclusion,  viz,  that  the  vessels, 
because  of  bridges,  could  not  go  down  the  river  with  their  masts 
stepped ;  their  sails  would  be  unavailing ;  and  they  could  only  use 
steam-power:  and,  further,  they  would  require  an  amount  and  a  class 
of  pilotage  which  would  become  unnecessary  and  useless  when  tiiey 
reached  the  sea.  Therefore,  I  repeat,  the  vessels  must  necessarily 
Jeave  the  place  where  their  river  navigation  commenced,  and  must 
•complete  that  river  navigation  in  a  state  in  which  they  would  be 
wholly  unsafe  and  unfit  for  the  sea  voyage.  The  river  navigation 
was  an  entirely  distinct  portion  of  the  voyage  from  Lyoi#s  to  Galatz. 
Starting  from  Lyons,  the  vessels  were  not  bound  to  be,  and  could  not 
be,  sea-worthy  for  more  than  the  river  navigation.  It  appears  to  rae 
that  oo  further  statement  of  the  facts  is  necessary  for  the  purpose  of 
dissevering  the  portion  of  the  voyage  between  Lyons  and  Marseilles 
from  that  from  Marseilles  to  Galatz,  than  the  statement  which  I  have 
already  made. 

What,  then,  is  the  conclusion  to  be  drawn,  with  reference,  first,  to 
the  warranty  of  sea -worthiness,  and,  secondly,  to  the  warranty  con- 
taiaed  in  this  policy,  to  sail  on  or  before  the  15th  of  August?  It 
^ippears  to  me  to  be  impossible  to  read  these  warranties  in  the  sense 
•of  saying  that  the  vessels  were  to  depart  from  Lyons  in  a  complete 
'State,  fit  to  proceed  upon  their  voyage  to  Galatz.  The  facts, — which 
must  have  been  as  well  known  to  the  insurers  as  to  the  assured, — 
-show  that  that  construction  would  make  the  warranty  defeat  the 
policy  altogether.  The  vessels  could  not  be  sent  from  Lyons  in  a 
complete  state  of  sea- worthiness  for  the  voyage  from  that  place  to 
*1341  ^^^^^^-    -^^»  therefore,  *the  necessity  of  the  case  compels  us 

^  to  reject  that  construction,  it  appears  to  me  that  we  must  take 
each  of  these  warranties  separately,  and  see  how  far  each  of  them  has 
been  complied  with.  And  first  I  will  take  the  warranty  of  sea- worthi- 
ness. For  the  reasons  which  I  have  already  given,  the  warranty  of 
sea-worthiness  must  have  a  difierent  meaning  as  applied  to  the  two 
different  portions  of  the  voyage.  Whilst  descending  the  Rhone,  the 
vessels  must  be  "sea-worthy,  —that  is  to  say,  in  a  state  of  fitness, — 
for  the  river  navigation  ;  and,  whilst  on  their  voyage  from  Marseille* 
to  Galatz,  they  must  be  fit  for  the  sea  portion  of  the  voyage.  Bat 
then  another  difficulty  is  suggested,  viz.  that  there  was  an  intermedin 
4ite  voyage  from  Aries  to  Marseilles.     With  respect  to  the  voyage 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    IT.  S.)        134 

from  the  mouth  of  the  Rhone  to  Marseilles,  that  appears  to  me  to  iredt 
simply  on  geography.  In  one  sense,  no  doubt,  the  vessels  would  get 
into  the  Mediterranean  as  soon  as  they  left  the  mouth  of  the  Rhone  : 
but  they  did  not  then  commence  their  sea  navigation  in  the  sense  of 
a  navigation  for  which  a  different  preparation  and  a  different  sort  of 
sea- worthiness  was  required :  and  it  is  with  that  we  are  now  con- 
cerned. Then,  can  any  distinction  be  drawn  with  respect  to  the 
voyage  from  Aries  to  Marseilles  ?  Clearly  not,  unless  Aries  was  the 
proper  place, — assuming  that  there  was  any  allowable  place, — for  the 
vessels  to  delay  in  order  to  change  their  state  of  preparation  from  a 
state  proper  for  riv^r  navigation  -to  a  state  proper  for  sea  navigation. 
Now,  for  this  we  must  resort  to  the  evidence.  It  certainly  was  possi- 
ble to  procure  at  Aries  the  spars^  sails,  anchors,  cables,  and  other 
appliances  which  were  necessary  to  put  the  vessels  in  a  fit  state  of  pre- 
paration for  the  sea  portion  of  the  voyage.  But^  was  it  necessary  or 
reasonable  that  the  assured  should  incur  the  expense  of  having  these 
things  brought  to  Aries,  when  the  vessels  •could  in  their  then  r*jq- 
state  of  preparation  safely  proceed  to  Marseilles  and  have  them  ^ 
more  conveniently  and  at  less  expense  supplied  there?  and  was  there 
any  delay  which  could  prejudice  the  insurers?  On  the  contrary,  the 
delay  which  would  have  been  caused  by  bringing  to  Aries  the  things 
necessary  for  a  sea  equipment  would  have  extended^  to  months; 
whereas,  the  whole  was  completed  at  Marseilles  in  a  few  days.  But, 
further,  supposing  the  vessels  could  have  been  and  had  been  com- 
pletely equipped  for  the  sea  voyage  at  Aries,  it  was  still  necessary 
that  they  should  proceed  to  Marseilles  for  the  purpose  of  obtaining  the 
surveys  and  certificates  which  are  essential  to  a  due  compliance  with 
the  laws  of  1791  and  1807.  The  vessels  had  a  right  under  the  policy 
to  touch  and  stay  for  all  lawful  purposes  at  any  port  or  place  on  their 
way  ;  and  unquestionably  Marseilles  was  a  lawful  port  to  stay  at  fbr 
that  necessary  purpose,  regard  being  had  to  the  nature  of  the  voyage 
and  the  country  to  which  the  vessels  belonged.  It  appears  to  me, 
therefore,  that,  as  the  vessels  were  seaworthv  from  Aries  to  Mar- 
seilles, the  objection  that  they  were  not  completely  fitted  at  Aries  U 
one  which  resolves  itself  into  a  mere  question  of  delay ;  and  the  evi- 
dence plainly  shows  that  the  assured  would  have  been  guilty  of  culpa- 
ble delay  if  thev  had  detained  the  vessels  at  Aries  instead  of  at  ofice 
proceeding  to  Marseilles. 

The  warranty  of  sea-worthiness,  then^  so  far  as  regards  the  voyage 
from  Lyons  to  Marseilles,  having  beeh  Ootnplied  With,  has  it  been 
com  pi  i^  with  as  regards  the  remaining  portion  of  the  voyage,  vie. 
from  Marseilles  to  Galatz  ?  As  to  the  delay  at  Marseilles,  it  appears 
to  me,  that,  if  the  underwriter  could  have  showti  that  there  was  any 
residuum  of  repair  completed  at  Marseilles  which  might  have  been 
completed  at  Lyods,  and  which  caused  any  delay  at  Marseiilles,  he 
would  have  succeeded  on  the  secotid  *poibt.  If  it  could  have  r^.]  da 
been  shown  that  the  repair  to  the  rudder,  for  iastanitd,  tiras  one  I* 
which  might  have  been  oorapleted  at  Lyons,  and  that  the  doing  it  at 
Marseilles  caused  a  greater  ddlaj  there  thaa  would  bate  been  Occa- 
sioned by  doin^  those  repairs  only  which  it  Was  &M668arv  should  b6 
done  at  Marseilles,  I  should  )Mve  MA  ifa4t  the  delay  defeated  the 
policieft    Bat  it  appears  to  me  that  the  iMti#Of  haa  mled  upon  the 


136  BOUILLON  i;.  LUPTON.     T.  V.  1863. 

second  proposition,  even  although  ho  might  have  been  successful  on 
the  first.  With  regard  to  the  first,  it  is  necessary  to  consider  whether 
the  repairs  which  were  done  to  the  rudder  were  repairs  incidental  to 
changing  it  from  that  description  of  rudder  which  is  used  for  the  river 
navigation  to  that  which  is  adapted  for  a  sea  voyage,  or  whether  they 
were  such  as  were  rendered  necessary  by  some  injury  sustained  in  the 
course  of  the  passage  down  the  river,  and  which  would  fall  within  the 
ordinary  class  of  "average."  Now,  there  is  no  evidence  that 
the  rudder  sustained  any  damage  in  coming  down  the  river,  or  that 
the  repair  or  alteration  of  the  rudder  caused  any  delay.  Whilst  the 
masts  were  being  placed,  by  whatever  number  of  men  or  mechanical 
appliances,  it  may  well  be  that  the  rudder  was  at  the  same  time  under- 
going the  requisite  alteration  or  repair  by  some  trifling  application  of 
labour.  If  it  can  be  supposed  that  every  portion  of  repair  which  is 
done  to  a  vessel  must  necessarily  be  .done  in  some  other  portion  of 
time  consecutively  from  every  other  repair,  and  that  the  whole  cannot 
proceed  simultaneously,  the  argument  will  advance  some  way.  But, 
even  if  that  could  be  established,  I  should  have  thought  that  in  the 
form  in  which  this  matter  is  presented  to  the  court  it  was  not  compe- 
tent to  the  defendants  to  raise  such  a  question.  I  should  have  thought, 
that,  if  that  was  intended  to  be  relied  on  by  the  defendant,  it  ought 
*1*571  ^  ^^y^  been  distinctly  pointed  *out  at  the  trial,  and  the  opinion 
J  of  the'jury  taken  upon  it.  For  the  reasons  which  I  have  given, 
although  proper  to  be  mentioned  to  the  court,  it  is,  I  think,  a  point 
which,  when  properly  sifted,  does  not  bear  the  importance  which, 
under  the  influence  of  Sir  George  Honyman's  argument,  it  at  ono 
time  assumed. 

Having,  as  I  conceive,  disposed  of  the  warranty  of  sea- worthiness, 
assuming  that  there  may  be  a  case  in  insurance  law  in  which  the  sea- 
worthiness need  not  exist  with  reference  to  the  entire  voyage  at  the 
time  the  vessel  weighs  anchor  and  breaks  ground, — the  next  question 
is,  whether  there  is  in  our  law  of  insurance  such  a  case  as  that  of  a 
warranty  of  sea-worthiness  applicable  in  different  degrees  to  two 
several  parts  of  the  voyage  insured,  arising  either  from  the  necessity 
of  the  case  or  from  the  usage  of  navigation ;  because  it  appears  to  me 
that  either  would  warrant  the  assured  in  their  contention  in  this  case. 
Now,  with  respect  to  the  necessity  of  the  case,  I  have  already 
explained  that,  in  the  view  I  take,  such  necessity  did  exist.  And, 
with  regard  to  the  usage  of  navigation,  the  evidence  seems  to  me  to 
show,  that,  if  the  assured  had  done  other  than  what  they  did,  they 
would  have  pursued  an  unusual  course :  and  the  policies  give  express 
power  to  st^y  for  all  lawful  purposes  at  Marseilles. 

Now,  to  show  that  there  is  such  a  case,  it  appears  to  me  only  to  be 
necessary  to  refer  to  the  authority  of  Lord  Wensleydale  in  Biccard  v. 
Shepherd,  14  Moore's  P.  C.  471.  I  do  not  propose  to  go  through  the 
facts  of  that  case,  for  in  truth  there  is  no  similarity  between  them  and 
the  facts  of  the  present  case:  but  I  refer  to  the  judgment  of  Lord 
Wensleydale  in  order  to  show  that  there  may  be  an  insurance  with  a 
fluctuating  warranty  of  sea-worthiness.  The  case  is  one  of  the  highest 
authority,  seeing  that  it  is  the  unanimous  judgment  of  the  judicial 
*1881  ^^™™^^*®®  ^^  ^^  Privy  Council.  They  *felt  that  there  was 
^  considerable  difficulty  in  separating  a  voyage  between  interme- 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        138 

diate  porta  from  the  voyage  from  the  port  of  departure  to  the  port  of 
ulterior  destination :  but,  after  much  consideration,  they  held  that  the 
sea  voyage  was  to  be  divided  into  several  periods,  and  that  the  war- 
ranty of  sea- worthiness  had  reference  to  the  condition  of  the  vessel  at 
those  several  periods.  Lord  Wensleydale,  of  whose  great  authority 
it  is  unnecessary  to  say  anything,  thus  lays  down  the  law: — "Some 
propositions  in  the  doctrine  of  implied  warranty  of  sea-worthiness, 
which  form  a  part  of  every  contract  of  marine  insurance  on  voyages 
(for,  to  time  policies  it  does  not  apply),  are  perfectly  settled.  They 
are  laid  down  in  the  case  of  Dixon  v,  Sadler,  5  M.  &  W.514,  in  which 
I  gave  the  judgment  of  the  Court  of  Exchequer,  with  the  concurrence 
of  my  Brethren,  founded  on  the  principle  laid  down  in  several  cases, 
—Busk  V.  The  Royal  Exchange  Assurance  Company,  2  B.  &  Aid.  72, 
Walker  v.  Maitland,  5  B.  &  Aid.  171  (E.  C.  L.  S.  vol.  7),  Holdsworth 
V.  Wise,  7  B.  &  C.  794  (E.  C.  L.  R.  vol.  14),  1  M.  &  R.  673,  Bishop  v. 
Pentland,  7  B.  &  C.  219,  1  M.  &  R.  49,  and  Shore  v.  Bentall.  7  B.  & 
C.  798,  n.  '  There  is  an  implied  warranty  in  every  insurance  of  a 
ship,  that  a  vessel  shall  be  sea-worthy,  by  which  it  is  meant  that  she 
shall  be  in  a  fit  state  as  to  repairs,  equipment  and  crew,  and  in  all 
other  respects,  to  perform  the  voyage  insured,  and  to  encounter  the 
ordinary  perils,  at  the  time  of  sailing  upon  it.' "  That  is  the  general 
rule.  If  it  be  applicable  here,  of  course  there  can  be  no  doubt  that 
the  defendants  are  right,  and  they  ought  to  succeed,  because  the  war- 
ranty of  sea- worthiness  has  not  been  complied  with  at  Lyons  in 
respect  of  the  whole  voyage.  Lord  Wensleydale  continues :  "  If  the 
insurance  attaches  before  the  voyage  commences,  it  is  enough  that  the 
state  of  the  ship  be  commensurate  to  the  then  risk  ;  and,  if  the  voyage 
be  such  as  to  require  a  different  complement  *of  men  or  state  of  r*i  on 
equipment  in  diflerent  parts  of  it,  as,  if  it  was  a  voyage  down  *• 
a  canal  or  river,  and  thence  to  and  on  the  open  sea,  it  is  enough  if  the 
vessel  be,  at  each  sta^e  of  the  navigation  in  which  the  loss  happens, 
properly  manned  and  equipped  for  it.  But  the  assured  makes  no 
warranty  to  the  underwriters  that  the  vessel  shall  continue  sea- worthy." 
Therefore  my  Lord  Wensleydale,  evidently  contemplating  a  case  of 
this  description,  lays  it  down  authoritatively  that  it  is  sufficient  if  the 
warranty  is  complied  vith  by  the  ship  being  sea-worthy  at  and  for 
each  stage  of  the  navigation. 

Now,  is  it  possible,  dealing  with  the  law  of  insurance,  if  reason  and 
good  sense  are  to  have  any  weight,  to  say  that  the  warranty  of  sea- 
worthiness is  complied  with  if  the  vessel  is  in  a  sufficient  state  of 
preparation  for  each  portion  of  the  voyage,  and  yet  that  no  time  shall 
be  allowed  for  making  the  necessary  change  in  her  state  ?  It  is  only 
necessary  to  state  the  proposition  in  order  to  elicit  the  true  answer 
from  every  person  having  any  acquaintance  with  insurance  law.  If  a 
change  may  take  place,  the  owner  is  entitled  to  a  reasonable  time  in 
which  to  effect  that  change.  It  appears  to  me,  therefore,  that  the  war- 
ranty of  sea-worthiness  was  complied  with  here  in  respect  of  place, 
according  to  the  principle  above  laid  down,  and  which  principle  I  am 
content  to  act  upon. 

We  come  next  to  the  question  of  time.  In  disposing  of  the  ques- 
tion as  to  the  warranty  of  sea- worthiness,  I  have  necessarily  considered 
and  disposed  of  the  question  of  time  so  far  as  relates  to  deviation  and 


139  BOUILLON  v.  LUPTON.    T.  V.  1863. 

delay  (other  than  deviation  aud  delay  imputed  to  the  vessel  called 
Papin  No.  6)  in  respect  of  the  repairs  and  alterations  effected  at  Mar- 
seilles for  the  purpose  of  fitting  the  vessels  for  sea-navigation.  But 
I  have  not  disposed  of  the  question  whether  or  not  the  vessels  did 
*1401  *^^^^  ^^  ^^  before  the  loth  of  August.  That  is  a  question 
■  J  which  requires  a  great  deal  of  attention,  because,  with  reference 
to  the  ordinary  case  of  a  vessel  bound  on  a  voyage  from  port  to  port, 
the  law  is  settled,  that  a  ship  is  not  to  be  taken  to  have  sailed  unless 
she  is  completely  equipped  for  the  voyage  upon  which  she  is  starting, 
and  her  equipment  is  not  complete  until  she  leaves  her  port  of  depart- 
ure, everything  having  been  done  which  is  usually  done  to  make  her 
fit  to  proceed  on  her  voyage.  That  is  the  ordinary  rule  ;  and  it  has 
been  laid  down  in  a  gre^it  variety  of  cases  to  which  reference  has  been 
made  in  the  course  of  the  argument, — more  especially  in  the  case  of 
Ridsdale  v.  Newnham,  4  Campb.  Ill,  8  M.  &  Selw.  456,  before  Lord 
EUenborough,  where  the  insurance  was  from  Portneuf  to  London, 
with  a  warranty  to  sail  on  or  before  the  28th  of  October,  and  the  ves- 
sel left  Portneuf  before  the  day  in  question  sufiiciently  equipped  for 
her  voyage  of  thirty-six  miles  down  the  smooth  waters  of  the  St.  Law- 
rence to  Quebec,  where  only  she  could  obtain  her  clearances  for  the 
voyage,  but  with  an  incomplete  crew  for  her  voyage  to  London.  So 
with  respect  to  the  case  of  Pettigrew  v.  Pringle,  3  B.  &  Ad.  514  (E. 
C.  L.  R.  vol.  23),  where  the  vessel  had  to  get  over  the  bar  at  the  mouth 
of  the  river  Ballyshannon,  and  take  on  board  the  thirty-five  tons  of 
ballast  which  was  necessary  for  the  purpose  of  making  her  ready  for 
a  sea  voyage,  and  she  did  not  t^ke  in  that  until  after  the  time  appointed 
for  her  sailing.  It  is  sufiicient  to  refer  to  these  cases  as  being  speci- 
mens of  authorities  in  which  it  has  been  laid  down  as  clear  law,  that 
a  vessel  is  not  to  be  considered  as  having  sailed  from  her  port  of 
departure  until  she  is  ready  to  proceed  upon  the  voyage  insured. 
Upon  that  I  conceive  there  is  no  doubt  at  all.  On  the  other  hand,  1 
*1411  ^^°^®^^®  ^^  ^^  ^  equally  clear  that  the  utmost  *extent  to  which 
J  those  cases  go,  is  that  which  is  stated  in  that  very  ably  and 
carefully  compiled  work,  Phillips  on  Insurance,  in  which  the  learned 
author  treats  these  cases  as  showing  that  a  vessel  cannot  be  said  to 
*'  sail"  from  a  port  without  having  completed  her  equipment  either 
there  or  at  another  place  which  is  to  be  considered  as  forming  part  of 
the  same  port, — or,  as  he  has  it,  *'  appended  to  the  port  for  the  pur- 
pose of  preparing  the  vessel  for  her  voyage."  But  in  none  of  those 
cases  was  there  the  necessity  which  exists  here,  of  construing  the 
warranty  of  seaworthiness  with  reference  to  each  distinct  part  of  the 
voyage :  And  here  it  was  impossible  that  the  vessel  should  leave  the 
first  port,  the  terminus  k  quo,  in  a  state  of  preparation  for  any  more 
than  the  stage  of  the  voyage  upon  which  she  was  to  proceed  imme- 
diately after  leaving  that  port.  And  I  must  observe,  that,  in  all  those 
cases,  the  vessel  was  not  seaworthy,  that  is  to  say,  seaworthy  in  the 
sense  of  being  completely  equipped  for  the  voyage,  when  she  left  the 
place  at  which  it  was  held  that  the  voyage  did  not  commence.  In  the 
present  case,  however,  having  regard  to  the  peculiar  construction  and 
application  which  it  is  necessary  to  give  to  the  warranty  of  seawor- 
thiness, the  vessels  had  left  Lyons  before  the  15th  of  August  in  such 
a  state  of  preparation  as  it  was  necessary  for  them  to  be  in,  and  in  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        141 

only  state  of  preparation  which  they  could  reasonably  be  in,  for  tho 
stage  of  the  voyage  succeeding  their  departure  from  Lyons.  The 
same  reasons  which  warranted  the  judgment  of  Lord  Wensleydale  in 
the  case  of  Biccard  v.  Shepherd,  14  Moore's  P.  C.  471,  as  it  appears 
to  me,  warrant  the  conclusion,  that,  where  a  vessel  undei'  circum- 
stances of  this  description  sails  from  the  port  named  in  a  state  of  fit- 
ness for  the  first  part  of  her  voyage, — that  being,  as  I  have  already 
pointed  out,  distinct  from  the  *other  portion  of  the  voyage, —  r*i4o 
she  does  sail  in  time  if  she  leaves  that  port  so  equipped  before  ^ 
the  day  named  in  the  warranty.  It  appears  to  me  that  we  should  be 
acting  inconsistently  if  we  applied  the  authority  of  Lord  Wensleydale 
to  the  warranty  of  sea-worthiness,  and  refusal  to  be  guided  by  it 
where  it  is  strictly  applicable  in  principle,  as,  to  the  warranty  to  sail 
on  or  before  a  given  day. 

It  only  remains  for  me  to  dispose  of  the  point  which  was  raised 
with  respect  to  the  vessel  Papin  No.  6.  The  facts  as  to  that  vessel, 
no  doubt,  raise  a  question  altogether  different  from  that  which  we 
have  hitherto  been  considering,  because  it  appears  that  she  left  Lyons 
on  the  24th  of  July  and  arrived  at  Marseilles  on  the  29th.  It  follows 
from  wliat  I  have  already  said,  that,  in  my  opinion,  it  was  not  neces- 
sary to  put  that  vessel  in  hand  so  as  to  complete  her  equipment  and 
make  her  ready  to  sail  from  Marseilles  on  or  before  the  15th  of 
August.  But  it  was  necessary  to  use  due  and  reasonable  diligence  in 
making  her  ready  to  start  from  the  last- mentioned  port.  Now,  the 
amount  of  diligence  exercised  with  reference  to  the  Papin  No.  6 
appears  to  have  had  reference  to  the  two  other  vessels,  the  Bourdon, 
which  left  Lyons  on  the  2d  of  August  and  arrived  at  Marseilles  on 
the  7th,  and  the  Papin  No.  1,  which  left  Lyons  on  the  same  day  and 
reached  Marseilles  oil  the  8th.  These  two  latter  vessels  appear  to 
have  been  repaired  with  all  the  diligence  which  could  have  been  ap- 
plied to  them.  All  three  were  ready  on  the  20th,  and  actually  sailed 
from  Marseilles  on  the  23d.  Now,  there  is  no  doubt,  upon  the  evi- 
dence, that  the  Papin  No.  6  might  have  been  got  ready  before  the  20th 
of  August,  and  that  the  repairs  of  that  vessel, — or  rather  the  "  outfit,*' 
for  "repairs,*'  which  was  the  word  used  in  the  argument,  is  an  incor- 
rect one, — the  outfit  of  that  vessel  *was not  proceeded  with  with  rm\AQ 
the  same  rapidity  as  that  of  the  other  two  vessels,  which  arrived  *- 
at  Marseilles  some  days  later.  The  explanation  which  was  given  of 
that  delay,  was,  that,  considering  the  build  of  the  vessels,  and  the 
nature  of  the  voyage  on  which  they  were  bound,  it  was  considered  to 
be  advisable  that  they  should  sail  in  company;  and  there  is  no  doubt 
that  the  owners  di(J,  with  that  object  in  view,  keep  back  the  outfit  of 
the  Papin  No.  6  for  a  few  days.  The  question  is,  whether  there  is 
any  evidence  to  show  that  that  delay  was  a  reasonable  delay.  If  I 
had  pressed  the  argument  upon  which  I  held  that  there  was  a  right  to 
do  the  repairs  at  Marseilles,  having  regard  to  the  peculiar  character 
and  application  of  the  warranty  of  sea- worthiness  in  this  particular 
case,  I  must  have  held  that  the  assured  bad  a  reasonable  time  in  which 
to  do  those  repairs ;  and  what  is  a  reasonable  time  would  properly  of 
couroe  have  reference  to  the  time  necessary  to  do  what  was  required 
to  be  done.  But  that,  I  conceive,  is  not  the  only  matter  to  which 
reference  is  to  be  made  in  order  to  determine  the  question  of  reason- 


143  BOUILLON  v.  LUPTON.    T.  V.  18«3. 

ableness  of  time.  There  may  be  circumstances  affecting  the  safety  of 
the  vessel,  or  the  convenient  prosecution  of  the  voyage,  which  may 
justify  some  delay.  But  that  must  be  a  question  for  the  jury,  having 
regard  to  all  the  facts  laid  before  them.  We  have  the  evidence  of  a 
captain  in  the  French  navy, — the  skill  and  courage  of  whose  ofBcers 
we  have  had  too  many  opportunities  of  appreciating, — who  stated  he 
thought  it  but  reasonable  that  the  Papin  No.  6  should  wait  until  the 
other  two  vessels  were  ready.  He  gave  as  his  reason,  that  he  would 
not  like  to  sail  in  one  of  these  vessels  without  having  the  others  in 
company ;  intimating  that  they  were  somewhat  crank,  and  such  as  to 
the  mind  of  a  sea-going  man  of  experience  suggested  such  an  amount 
.  •1441  of  peril  as  he  would  not  be  willing  to  *encounter  without 
-'  having  assistance  at  hand.  If  that  was  the  opinion  of  a  man 
of  such  a  character  as  used  to  be  called  in  the  old  books  a  man  of  a 
constant  mind, — not  of  mere  caprice  or  timidity,  but  having  a  due 
regard  to  the  safety  of  the  vessel  and  the  lives  of  her  crew, — I  cannot 
say  that  there  was  no  evidence  upon  which  a  jury  might  properly 
hold  that  a  prudent  man  uninsured  would  have  waited  the  time  that 
the  captain  of  the  Papin  No.  6  did  wait.  I  cannot,  when  I  come 
thoroughly  to  consider  the  matter,  bring  myself  to  say  that  there  was 
no  evidence  from  which  the  jury  might  fairly  come  to  the  conclusion 
that  there  was  no  unreasonable  delay.  It  is  not  desirable  to  withdraw 
questions  of  that  sort  from  a  jury,  who,  from  their  habits  and  general 
knowledge  of  business,  are  well  qualified  to  deal  with  them. 

Upon  that  point,  therefore,  as  upon  the  others,  I  feel  bound  to  come 
to  a  conclusion  in  favour  of  the  plaintififs,  and  to  hold  that  the  rule 
should  be  discharged. 

Byles,  J. — I  am  entirely  of  the  same  opinion.  My  Brother  Willes 
has  gone  so  fully  into  the  various  points  which  were  raised  in  this 
case,  that  it  is  unnecessary  for  me  to  say  more  than  that  I  entirely 
concur  in  every  part  of  his  judgment.  There  is,  however,  one  obser- 
vation which  may  be  made  as  to  Papin  No.  6.  In  addition  to  the 
consideration  for  the  lives  of  the  crew,  which  is  an  element  which,  I 
think,  might  fairly  guide  the  judgment  of  the  captain,  I  think  it  is 
plain  upon  the  face  of  the  policies  that  it  was  the  intention  of  the 
parties  that  these  three  vessels  should  sail  in  company.  I  think  the 
stipulation  that  the  assured  should  have  leave  "to  tow  and  be  towed," — 
bearing  in  mind  that  they  are  all  steam- vessels, — necessarily  imports 
*1451  *^^^  ^^®^  ^^®  *^  proceed  in  company;  at  all  events,  if  *no  ex 
^  traordinary  or  unreasonable  delay  is  to  be  occasioned  therehy. 
Again  repeating  my  adhesion  to  all  that  has  fallen  from  my  Brother 
AVilles,  I  must  say  that  I  do  not  entertain  any  doubt  as  to  the  pro- 
priety of  our  decision.  Eule  discharged  .(a] 

^  (a)  See  Bargei  v.  Wiekham,  S2  Law  J.  Q.  B.  17. 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)        145 


COLLINGWOOD  v.  BERKELEY  and  Others.    June  6. 

A  prospectus  of  a  projected  company  for  tbe  eonrejanoe  of  emigrants  to  British  Colnmbia 
contained  statements  calcnlated  to  induce  intending  emigrants  to  belioTe  that  arrangements 
bad  been  perfected  for  the  object  in  view,  and  inriting  them  to  take  tickets  for  their  passagt 
and  the  public  to  purchase  shares.  This  prospectus  was  shown  by  the  secretary  to  the  defend- 
ants, and  they  were  asked  to  allow  their  names  to  be  inserted  therein  as  directors ;  to  which 
they  consented,  on  bring  qnalijied  (that  is,  presented  each  with  200  psid-np  shares  of  the  nomi- 
nal value  of  10/.  each)  and  indemnified.  Their  names  were  accordingly  inserted,  and  the  pros- 
pectus published  and  advertised  in  the  Times : — 

Held,  that,  from  these  facts,  the  jury  were  warranted  in  inferring  that  one  who  contracted 
with  tbe  secretary  for  a  passage,  and  paid  his  money,  upon  the  faith  of  the  representations  con- 
tained in  the  prospectus,  did  so  upon  the  credit  of  the  defendants,  and  consequently  that  he 
was  entitled  to  sue  them  for  a  breach  of  such  contract. 

This  was  an  action  for  the  breach  of  an  alleged  contract  by  the 
defendants  to  carry  the  plaintiff  from  London  to  British  Columbia. 

The  first  count  of  the  declaration  stated  that  the  defendants  were 
directors  of  a  certain  company  called  The  British  Columbia  Overland 
Transit  Company,  and  that  they  falsely  and  fraudulently  represented 
to  the  plaintiff  that  the  said  company  would,  in  the  month  of  May, 
1862,  despatch  a  party  of  passengers  from  England  per  steamer  to 
Canada  and  over  the  Grand  Trunk  railway  to  Chicago  and  St.  Paul's, 
and  via  the  Red  River  Settlement,  in  covered  wagons,  four-horsed,  to 
British  Columbia;  also  that  a  large  escort  would  accompany  the 
passengers,  and  due  provision  would  be  made  for  victualling,  and  that 
the  fare  or  pasSage-money  for  each  passenger  from  England  to  British 
Columbia  aforesaid  would  be  the  sum  of  42 Z.,  and  that  *one  r^i^g 
James  Henson  was  secretary  of  the  said  company :  Averment,  ^ 
that,  believing  the  said  representations  to  be  true,  and  relying  thereon, 
the  plaintiff  was  induced  to  pay  to  the  said  James  Henson,  as  such 
secretary  of  the  said  company,  and  the  said  James  Henson,  as  such 
secretary,  accepted  and  received  from  the  plaintiff,  the  sum  of  42 Z.  as 
and  for  the  fare  or  passage-money  for  the  conveyance  of  the  plaintiff 
from  England  to  British  Columbia  by  the  means  and  in  the  manner 
hereinbefore  set  forth;  and  that  all  conditions  were  performed  and 
fulfilled,  and  all  things  happened  and  were  done,  and  all  times  had 
elapsed  necessary  to  entitle  the  plaintiff'  to  be  conveyed  to  British 
Columbia  aforesaid  by  the  said  company,  and  to  maintain  this  action : 
Breach,  that  the  defendants  did  not  convey  the  plaintiff  to  British 
Columbia  or  to  any  other  place  beyond  St.  Paul's  aforesaid,  and  no 
covered  or  other  carriages,  four-horsed  or  otherwise,  were  provided  by 
the  defendants  for  the  conveyance  of  the  plaintiff  to  British  Columbia 
aforesaid,  nor  was  there  any  escort  provided  to  accompany  the  plain- 
tiff as  such  passenger  as  aforesaid,  nor  was  any  provision  made  for 
victualling  the  plaintiff  as  such  passenger  as  aforesaid,  as  the  defend- 
ants well  knew. 

The  second  count  stated  that  the  defendants  and  divers  other  persons 
issued,  published,  and  circulated,  and  caused  to  be  issued,  published, 
and  circulated  certain  prospectuses  or  advertisements,  in  which  it  was, 
amongst  other  things,  stated  and  represented  that  the  defendants  and 
divers  other  persons  were  directors  of  a  certain  company  called  The 
British  Columbia  Overland  Transit  Company,  Limited,  and  that  one 
James  Henson  was  the  secretary  of  the  said  company,  and  that  the 


146  COLLINGWOOD  r.  BERKELEY.    T.  V.  1863. 

promoters  of  the  said  company  had  organized  a  certain  route  from 
Canada  to  British  Columbia,  and  would  forthwith  organize  a  perfect 
♦1471  I^o^"^^^"sport  train  *of  horses  and  spring-carts  adapted  for 
J  passengers  and  goods  traffic,  and  that  instructions  had  been  sent 
out  to  its  agents,  by  which  the  route  would  be  placed  in  a  perfect 
state,  and  would  in  the  month  of  May,  1862,  despatch  a  party  of  first 
and  second-class  passengers  by  the  said  route  from  England  to  British 
*  Columbia  :  Averment,  that,  believing  the  statements  and  representa- 
tions in  the  said  prospectuses  or  advertisements,  and  relying  thereon, 
the  plaintiff  was  induced  to  enter  into  a  certain  contract  or  agreement 
with  the  said  James  Henson  as  the  secretary  and  on  behalf  of  the 
said  alleged  company,  for  the  conveyance  by  the  said  alleged  company 
of  the  plaintiff  to  British  Columbia  by  the  route  aforesaid,  and  to  pay 
to  the  said  James  Henson  as  such  secretary  the  sum  of  42Z.  as  and  for 
the  passage-money  or  fare  of  the  plaintiff:  Breach,  that  the  defendants, 
in  and  by  the  said  statements  and  representations  thereinbefore  men- 
tioned, deceived  and  defrauded  the  plaintiff  in  this,  that,  at  the  time 
of  making  the  said  statements  and  representations,  no  company  had 
been  established  called  The  British  Columbia  Overland  Transit  Com- 
pany, Limited,  and  no  route  had  been  organized  from  Canada  to 
British  Columbia  by  the  alleged  promoters  of  the  said  alleged  company, 
and  no  means  had  been  taken  or  were  intended  to  be  taken  to  organ- 
ize a  land-transport  train  of  horses  and  spring-carts,  and  instructions 
had  not  been  sent  out  to  the  agents  of  the  said  alleged  company,  by 
which  the  said  alleged  route  would  be  placed  in  a  perfect  state, — all 
which  the  defendants  well  knew ;  and  that  the  plaintiff  was  not  con- 
veyed to  British  Columbia  aforesaid  in  pursuance  of  the  said  contract 
or  agreement  with  the  said  James  Henson  as  such  secretary  as  afore- 
said, but  only  to  St.  Paul's  aforesaid. 

•1481  ^^®  *^'^^  count  stated,  that,  on  the  17th  of  May,  ♦1862,  in 
^  consideration  of  the  sum  of  42Z.  then  paid  to  the  defendants 
by  the  plaintiff,  the  defendants  agreed  with  the  plaintiff  to  carry  and 
convey  the  plaintiff*  from  England  to  British  Columbia,  by  way  of 
St.  PauFs,  and  that  from  St.  Paul's  aforesaid  to  British  Columbia 
aforesaid  a  large  train  of  horses  and  wagons,  accompanied  by  a  nume- 
rous escort,  should  and  would  start  with  the  convoy ;  also  that  parties 
should  and  would  be  sent  in  advance  to  collect  at  stated  points  extra 
provisions;  while  cattle  would  be  driven  to  those  stations;  and  that 
all  conditions  were  performed  and  fulfilled,  and  all  things  happened 
and  were  done,  and  all  times  elapsed  necessary  to  entitle  the  plaintiff 
to  a  performance  of  the  said  agreement  by  the  defendants  and  to 
maintain  this  action  for  the  breach  thereof  hereinafter  alleged :  Breach, 
that  the  defendants  did  not  carry  and  convey  the  plaintiff  from 
England  to  British  Columbia  aforesaid  by  way  of  St.  Paul's  aforesaid 
or  otherwise,  and  no  train  of  horses  and  wagons  accompanied  by  a 
numerous  or  any  escort  were  provided  by  the  defendants  or  any 
other  person  or  persons  to  start  from  St.  Paul's  aforesaid  to  British 
Columbia  aforesaid,  and  the  defendants  did  not  send  any  person  or 
persons  from  St.  Paul's  in  advance,  for  the  purposes  above  stated  or 
any  of  them ;  whereby  and  by  means  whereof  the  plaintiff  was  com- 
pelled to  remain  and  stay  at  St.  Paul's  aforesaid  for  a  long  time,  to 
wit,  seven  days,  and  was  unable  to  proceed  to  British  Columbia  afore- 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        148 

said,  and  lost  divers  large  profits  and  gains  that  he  otherwise  would 
have  made  at  British  Columbia  aforesaid,  and  was  compelled  to  leave 
St.  PanPs  aforesaid,  and  was  put  to  expense,  to  wit,  the  sum  of  100^., 
Id  returning  to  England. 

There  was  also  a  count  for  money  paid,  money  received,  and  money 
fouud  dae  upon  accounts  stated. 

The  defendants  severally  pleaded  in  substance  as  *follows, —  r*i  49 
first,  to  the  first  and  second  counts,  not  guilty, — secondly,  to  *- 
the  first  count,  that  they  were  not  directors  as  alleged, — thirdly,  to 
the  third  count,  that  they  did  not  agree  as  alleged, — fourthly,  to  the 
third  count,  that  the  plaintiff  did  not  pay  the  said  sum,  or  any  part 
thereof,  to  them  as  alleged, — fifthly,  to  the  residue  of  the  declaration, 
never  indebted.     Issue  thereon. 

The  cause  was  tried  before  Erie,  0.  J.,  at  the  sittings  in  London 
after  last  Hilary  Term.  The  facts  which  Appeared  in  evidence  were 
in  substance  as  follows : — 

In  the  Spring  of  1862,  a  gentleman  who  called  himself  Colonel 
Sleigh  proposed  to  form  a  company,  with  limited  liability,  for  the 
conveyance  of  emigrants  to  British  Columbia,  appointed  a  secretary, 
took  offices  in  the  city,  and  issued  a  prospectus  to  the  following 
effect, — 

"British  Columbia  Overland  Transit  Company,'Limited  (with  an- 
ticipated legislative,  colonial,  and  government  postal  subsidies  or 
guaranties  of  6  per  cent.).  To  be  incorporated  under  the  provisions 
of  the  Joint-Stock  Companies  Acts  of  1857  and  1858.  Capital, 
500,000?.  sterling  (with  power  to  increase  to  one  million),  in  50,000 
shares  of  10/.  each.  Deposit,  11.  per  share  on  application,  and  11, 10s. 
on  allotment.  No  further  call  without  three  months'  notice,  except 
by  consent  of  a  general  meeting  of  the  shareholders. 

"Board  of  Directors,— The  Hon.  F.  H.  Fitzhardinge  Berkeley,  M. 
P.,  Henry  Fenton  Jadis,  Ac,  &c. 

"Bankers, — Bank  of  London,  Threadneedle  Street,  E.  C;  Robarts, 
Lubbock,  &  Co.,  11  Mansion  House  Street,  E.  C. 

"Solicitors, — Messrs.  Prichard  &  Collette,  57,  Lincoln's  Inn  Fields. 

"  Offices,— 6,  Copthall  Court,  Throgmorton  Street. 

"  Secretary, — James  Henson,  Esq. 

**'  The  only  drawback  to  the  future  greatness  of  the  country,  r^^  ca 
is,  the  distance  by  sea  from  Europe, — five  months  vi&  Cape  *• 
Horn,  and  forty  to  fifty  days  by  steam  vifi  Panama.  To  obviate  this 
and  at  once  give  an  impetus  to  immigration,  and  by  which  a  contin- 
uous stream  of  settlers  will  hasten  to  British  Columbia,  the  overland 
route  from  Canada,  passing  direct  through  British  territory,  has  been 
arranged  by  the  promoters  of  the  Overland  Transit  Company.  Sev- 
eral surveys  have  resulted  in  tracing  a  direct  road,  which,  with  a 
perfect  organization  of  land  transport,  is  at  once  available.  From 
Europe,  settlers  will  proceed  to  Canada,  and  thence  direct  by  steam  to 
Fort  William,  or,  as  afterwards  explained,  to  Fond  du  Lac,  Lake  Su- 
perior. From  thence  the  route  proceeds  to  the  Red  River  Settlement, 
and  onwards  direct  through  a  lovely  prairie  country  to  British  Colum- 
bia  by  the  route  indicated  in  the  following  extract  from  the  report  of 
Governor  Douglas,  printed  in  the  Blue  Books  of  1860,  and  laid  before 
parliament^ — 'From  Lytton,  a  central  point  in  British  Columbia,  a 


150  COLLINGWOOD  v,  BERKELEY.    T.  V.  1863. 

natural  road  now  exists,  leading  to  Eed  River  Settlement,  by  the  Con- 
tannais  Pass,  through  the  Rocky  Mountains,  and  from  thence  follow- 
ing the  Valley  of  the  Saskatchewan,  chiefly  over  a  prairie  country  of 
great  beauty,  replete  with  game.  A  settler  may  take  his  departure 
with  his  cattle  and  stock,  and  reach  British  Columbia  by  that  road. 
This  is  no  theory ;  the  experiment  having  been  repeatedly  made  by 
parties  of  Red  River  people  travelling  to  Colville,  British  Columbia, 
from  whence  there  is  a  good  road  to  Lytton ;  so  much  so,  indeed,  that 
persons  assured  me  that  the  whole  distance  from  Lytton  to  Red  River 
may  be  safely  travelled  with  carts.  Lytton  is  a  town  situated  in  the 
centre  of  the  gold  district  of  British  Columbia,  near  Fort  Hope  on 
the  Frazer  River.' 
^^^|,       *"This  corporation  will  forthwith  organize  a  perfect  land- 

-'  transport  train  of  horses  and  spring-carts  adapted  for  passen- 
gers and  goods  traffic,  and  erect  log-shanties  for  light  stabling  and 
refreshment  at  stated  intervals  along  the  entire  route.  Cattle  and 
provisions  will  be  collected  at  these  stations,  and  armed  mounted 
escorts  will  be  formed  for  convoy.  By  the  arrangements  already  in 
a  state  of  forwardness  in  Canada  from  instructions  sent  out  to  agents, 
there  can  be  no  question  but  that  the  route  will  be  placed  in  a  perfect 
state,  ready  to  meet  the  requirements  of  an  enormous  immigrant  traffic 
Applications  have  been  made  direct  to  the  legislative  council  of  Bri- 
tish Columbia,  and  to  the  government  in  Canada,  for  local  charters 
which  shall  secure  for  this  company  exclusive  privileges  for  several 
years  to  come.  Both  Canada  and  British  Columbia  have  offered  large 
inducements  to  the  promoters  of  an  overland  route  such  has  been  or- 
ganized by  this  company.  It  is  estimated  that  by  the  express  carts  of 
this  corporation,  the  distance  from  Lytton  or  Fort  Hope  on  the  Fra- 
zer River,  British  Columbia,  to  Lake  Superior,  the  head  quarters  of 
steam  navigation,  will  be  performed  in  twelve  days.  Hence,  Europe 
could  be  reached  from  British  Columbia  in,  say,  twenty-five  days.  As 
the  route  from  Fort  William,  Lake  Superior,  to  Red  River  Settlement, 
would  require  some  delay  to  be  put  in  a  state  for  cart  traffic,  the  Over- 
land Transit  Companv  propose  for  the  first  twelve  months  that  pas- 
sengers should  proceed  by  steamer  to  Fond  du  Lac,  Lake  Superior, 
and  thence  up  the  St.  Louis  river,  and  thence  by  express  carts  to  the 
junction  of  the  Sioux  Wood  and  Red  River  (two  hundred  miles), 
from  thence  in  small  river  steamers  to  Assiniboine,  Red  River  Settle- 
ment (one  hundred  and  eighty  miles).  Small  steamers,  especially 
adapted  for  this  navigation,  can  be  constructed  for  5000^.  a  piece. 
♦1521  ^^^^  *Assiniboine  to  Elbow  Forks  of  the  S.  Saskatchewan(a) 

•^  (five  hundred  miles),  from  Elbow  to  Fort  Hope,  on  the  Frazer 
River,  British  Columbia,  vifi  the  Vermillion  Pass  of  the  Rocky  Moun- 
tains (seven  hundred  miles).  Hope  Town  is  connected  by  steamers 
with  Victoria.  Total  distance  from  Fond  du  Lac,  fifteen  hundred  and 
eighty  miles,  about  two  hundred  miles  of  which  will  be  travelled  in 
steamers ;  and  probably  more  steamers  will  ultimately  be  put  upon 
the  S.  Saskatchewan,  by  which  three  hundred  miles  more  could  be 
travelled  in  steamers;  thus  reducing  land  travel  by  five  hundred 
miles,  being  about  one  thousand  miles  for  the  express  carts.     While 

(a)  Sir  Qeorge  Simpson,  the  goTernor  of  the  Hndson's  Baj  Compaay,  travelled  between  Rel 
filTer  and  the  6.  Saakatobewan  on  a  well-defined  track  over  the  plains  with  a  oart. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        152 

the  United  States  overland  route  from  St.  Louig  to  San  Francisco  is 
two  thousand  seven  hundred  and  sixty-five  miles,  the  British  Transit 
Company's  route  is  only  fifteen  hundred  and  eighty  miles,  showing  a 
saving  of  distance  in  favour  of  the  latter  of  above  one  thousand  miles, 
and  a  saving  of  ten  days  in  time.  i 

"  To  obviate  the  necessity  of  the  slightest  delay  in  opening  up  the 
first  portion  of  the  route  to  the  Eed  River  Settlement,  reciprocal 
arrangements  are  in  course  of  completion,  by  which  this  company  can 
without  any  delay  forward  its  passengers  to  Detroit,  and  from  thence 
to  Chicago,  by  railroad,  and  thence  per  rail  to  La  Crosse,  on  the  Mis- 
sissippi. There  are  two  trains  daily  between  Chicago  and  La  Crosse 
(time  thirteen  hours),  and  from  thence  there  are  two  lines  of  steamers 
to  St.  Paul's  (time  from  Portland  or  Quebec  to  St.  Paul's,  three  days). 
Sail  and  steam  distance,  1358  miles  ;  and  in  winter  stage-coaches  from 
La  Crosse  to  St.  Paul's.  From  St.  Paul's  there  is  an  excellent  r#i -o 
*and  well-travelled  road,  connecting  with  the  Red  River  Settle-  •■ 
ments,  y\&  Pembina,  to  Assiniboine. 

*  Estimating  the  receipts  from  first-class  passengers  by  the  postal 
express,  and  from  second-class  passengers  and  emigrant  escort-trains, 
the  revenue  would  amount  to  above  800,000Z.  per  annum,  adding  the 
revenue  from  return  passengers,  parcels,  gold,  goods,  and  emigrant 
escorts,  and  calculating  also  the  freightage  on  gold-dust  which  would 
be  transported  by  this  route  to  Europe,  deducting  working  expenses, 
estimated  upon  the  basis  of  the  United  States  overland  transport 
express  from  Missouri  to  San  Francisco,  there  would  be  a  profit  of  fully 
100,000?.  per  annum,  irrespective  of  postal  revenue  or  colonial  subsi- 
dies. Escort-trains  for  emigrants  will  be  organized  on  a  less  expensive 
scale  of  charge,  and  by  which  British  Coluinbia  be  will  reached  in  about 
a  month,  at  a  cost  of  about  lOZ.  from  Canada,  or  less,  per  adult  head. 

*'  This  great  national  undertaking  cannot  fail  to  be  appreciated  by 
a  British  public,  standing  second  to  none  in  commercial  enterprise  and 
patriotic  devotedness  to  the  future  greatness  of  the  British  empire. 

"It  is  a  question  of  great  importance,  whether  by  this  route 
Australia  and  China  cannot  be  reached  a  month  sooner  by  saving  of 
time  than  by  the  existing  routes.  Such  is  the  opinion  of  some  first- 
class  authorities." 

After  referring  to  "  the  banking  business  of  the  corporation,"  the 

;rospectus  concluded  as  follows: — "The  British  Columbia  Overland 
Vansit  Company,  Limited,  is  enabled  to  start  with  the  full  advantages 
of  the  act  by  which  the  liability  of  the  shareholders  is  strictly  limited 
in  each  case  to  the  amount  of  their  shares :"  and  it  was  signed,  "James 
Heoson,  Secretary." 

This  prospectus  was  shown  to  Mr.  Berkeley  (who  was  one  of  the 
members  for  Bristol),  and  Mr.  Jadis  (who  held  an  appointment  in  the 
oflBce  of  the  board  of  *trade),  by  Henson,  and  they  authorized  r4.i  54 
its  publication  with  their  names  in  it :  and  on  the  1st  of  April  *- 
Mr.  Berkeley,  in  a  letter  addressed  to  Henson,  wrote, — "  On  the  distinct 
understanding  that  I  am  indemnified  and  (qualified"  (that  is,  by  having 
200  shares,  nominally  paid  up,  appropriated  to  him),  "I  have  no 
objection  to  belong  to  the  British  Columbia  Overland  Transit  Company 
and  Banking  (Corporation,  Limited." 

In  the  Times  of  the  28d  and  26th  of  May,  1862,  two  letters  appeared. 


154  COLLINGWOOD  v.  BERKELEY.    T.  V.  1863. 

complaining  of  the  hardships  which  passengers  who  had  been  induced 
to  travel  by  the  company's  route  had  had  to  encounter,  and  comment- 
ing in  strong  terms  upon  the  conduct  of  the  promoters,  the  chief  of 
whom  (and  probably  the  only  one)  had  then  been  discovered  to  be 
Colonel  Sleigh.  The  matter  also  underwent  considerable  discussion 
in  the  House  of  Commons*  This  produced  from  Mr.  Berkeley  the 
following  letters,  addressed  to  Henson, — 

May  26, 1862.  '*In  the  House  I  consulted  Mr.  Chichester  Fortescue, 
and  he  considered  that  it  were  best  that  I  should  merely  watch  pro- 
ceedings, and  come  in  if  the  thing  looked  serious.  It  did  not.  At 
the  same  time,  I  should  like  to  know  what  reasonable  probability  there 
is  of  overcoming  the  difficulties  related  in  the  Times  of  to-day.  It 
will  not  do  to  let  our  emigrants  eat  horses  and  dead  dogs.  Colonel  S. 
is  not  viewed  with  much  confidence  by  government  nor  by  the  public, 
I  assure  you." 

May  30,  1862.  '*  Please  to  withdraw  my  name  from  the  British 
Columbia  Emigration  Company  at  once.  I  am  not  at  all  satisfied  with 
the  arrangements,  and  decline  to  belong  to  it." 

May  30,  1862.  "Representing  a  great  mercantile  constituency,  I 
doubt  whether  my  name  appearing  in  so  many  companies  is  prudent. 
As  regards  the  Columbia,  I  have  already  written  to  withdraw  my 
^1^  -.--.  name.  *I  do  not  desire  to  injure  the  prospectsof  thecompany  : 
J  but,  after  the  present  time,  my  name  must  not  appear.  I  hear 
the  most  unpleasant  reports;  and  Colonel  Sleigh's  name  is  not  a  tower 
of  strength  sufficient  to  stem  public  opi&ion. 

'^  P.  S.  Please  take  no  steps  in  any  companies  for  me  until  we 
meet." 

Upon  the  faith  of  the  statements  contained  in  the  prospectus,  the 
plaintiff  (with  many  others)  on  the  17th  of  May,  1862,  agreed  with 
Benson,  the  secretary,  for  a  passage  to  British  Columbia,  for  which* he 
paid  Henson  42Z. ;  but,  when  the  train  arrived  at  St.  Paul's,  it  was 
found  that  no  further  progress  could  be  made,  no  arrangements  having 
been  made  for  carrying  the  passengers  on  to  their  destination ;  and, 
after  enduring  many  hardships  and  privations,  some  of  them,-^the 
plaintiff'  amongst  the  rest, — found  their  way  back  to  England  in  a  state 
of  almost  utter  destitution. 

Henson,  who  was  called  as  a  witness,  stated  that  he  showed  the 
prospectus  to  Mr.  Berkeley,  Mr«  Jadis,  and  the  others,  and  asked  them 
if  they  would  consent  to  become  directors  of  the  proposed  company, 
and  that  they  all  assented  to  do  so ;  and  thereupon  he  inserted  their 
names,  and  the  prospectus  was  pablished  and  advertised  in  the  Times 
for  several  weeks.  He  further  stated  that  all  the  money  which  he 
received  from  pasdengerd  atid  for  deposits  (about  1500/.  in  the  whole) 
was  paid  in  to  the  account  of  Colonel  Sleigh  at  the  West  End  Bank. 

There  was  no  evidence  that  either  Mr^  Berkeley  or  Mr.  Jadis  had 
ever  been  to  the  offices  of  the  company,  or  had  seen  the  advertise* 
ments,  or  taken  any  active  part  in  the  promotion  of  the  concern ;  and 
both  swore  that  they  never  intended  to  authoriee  Henson  to  enter  into 
any  contracts  upon  their  credit  until  the  company  was  fairly  formed 
*15fi1  ^^^  ^^'  arrangements  for  *the  tf  atisit  of  passengers  perfected^ 
^  The  only  evidence  to  fix  Jadls,  was,  that  he  bad  written  to 
Henson^  assenting  to  bd  nam^  a  difeotor  "on  being  qualified  and 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        156 

indemDified/'  and  that,  in  a  letter  addressed  to  a  third  party,  he  stated 
that  he  was  a  director  of  the  company. 

On  the  part  of  the  plaintiff  it  was  submitted  that  the  defendants,  by 
consenting  to  become  directors,  had  authorized  Henson  to  make  con- 
tracts for  the  furtherance  of  the  scheme,  and  that  for  the  breach  of 
those  contracts  they  were  liable,  if  not  for  the  false  and  fraudulent 
representations  contained  in  the  prospectus.  For  the  defendants,  on 
the  other  hand,  it  was  contended  that  they  had  never  authorized 
Ilenson  to  enter  into  any  contracts  in  their  names,  and  that  all  they 
contemplated,  was,  to  become  directors  of  a  company  to  be  commenced 
when  all  the  arrangements  referred  to  in  the  prospectus  had  been  fully 
carried  out. 

The  jury  returned  a  verdict  for  the  plaintiff,  damages  160?. 

Montague  Smith,  Q.  C,  in  Easter  Term  last,  pursuant  to  leave 
reserved  to  him  at  the  trial,  obtained  a  rule  nisi  to  enter  a  verdict  for 
the  defendant  Berkeley  **  on  the  ground  that  he  had  given  no  authority 
to  any  one  to  enter  into  the  contract,  and  that  there  was  no  evidence 
of  such  authority;"  or  for  a  new  trial  on  the  ground  that  the  verdict 
was  against  evidence. 

Dalt/  at  the  same  time  obtained  a  similar  rule  on  behalf  of  the 
defendant  Jadis. 

Shee,  Serjt.,  and  Pigott^  Serjt.,  showed  cause. — There  was  abundant 
evidence  to  show  that  during  the  months  of  April  and  May,  1862, 
both  Mr.  Berkeley  and  Mr.  Jadis  were  with  their  consent  held  out  as 
members  and  directors  of  the  company  in  question.  The  letters 
*of  the  former  in  particular  are  those  of  a  man  who  has  con-  r*^r^ 
sented  to  take  his  chance  of  any  advantage  that  might  accrue  ^  ^ 
to  him  from  the  scheme  if  successful,  and,  when  he  sees  the  prospect 
of  responsibility,  seeks  to  repudiate  the  acts  of  those  who  have  traded 
on  the  respectability  and  influence  of  his  name.  Both  clearly  allowed 
themselves  to  be  held  out  to  the  world,  and  to  those  who,  like  the 
plaintiff,  wished  to  avail  themselves  of  the  facilities  of  transit  promised 
by  the  prospectus,  as  persons  under  whose  sanction  and  authority 
Henson  was  acting.  The  present  case  does  not  differ  in  any  material 
respect  from  that  of  Doubleday  v.  Muskett,  4  M.  &  P.  750,  7  Bingh. 
110  (E.  C.  L.  R.  vol.  20).  There,  the  defendants  consented  to  become 
directors^  bought  shares,  and  attended  meetings  of  a  projected  water 
company,  for  which  it  was  contemplated  that  an  act  of  parliament 
should  be  obtained ;  having  done  no  act  to  divest  themselves  of  their 
interest  in  the  concern,  it  was  held,  that,  though  no  act  of  parliament 
was  obtained,  and  the  project  failed,  they  were  responsible  for  works 
ordered  at  subsequent  meetings  of  the  directors  which  the  defendants 
did  not  attend.  Tindal,  C.  J.,  there  says :  "  The  contract  was  entered 
i&to  on  the  16th  of  January,  1826:  it  consisted  of  a  tender  sent  in  by 
the  plaintiff  on  that  day  in  consequence  of  an  advertisement  inserted 
on  the  7th  in  a  Brighton  newspaper  by  order  of  the  directors.  Let  ud 
see  the  situation  of  these  defendants  at  the  time  of  that  advertisement, 
•^whether  they  were  at  that  time  directors,  or  had  allowed  themselves 
to  be  held  out  to  the  world  as  such :  for,  by  the  terms  of  that  adver- 
tisement, the  directors  of  the  company  became  liable  for  the  work  in 
Jnestion.  The  advertisement  was  as  follows : — '  The  directors  of  the 
Brighton  Water  Company  ard  ready  to  reoelve  proposals  for  ezoava- 


157  COLLINGWOOD  v.  BERKELEY.    T.  V.  1863. 

ling  and  removing  the  earth  and  chalk  for  forming  one  or  more  reser- 
*1 581  ^^'^^»'  ^^'  ^^»  *then,  the  defendants  by  their  conduct  authorized 
-'  the  publication  of  that  advertisement,  they  are  equally  liable 
with  the  rest  of  the  directors.  It  appears  that  they  accepted  the  office 
of  directors,  attended  at  several  meetings  of  the  directors,  and  pur- 
chased the  number  of  shares  requisite  to  qualify  them  to  act  in  that 
capacity.  They  were  therefore  not  only  directors,  but  were  actually 
interested  in  the  funds  of  the  concern.  It  is  sufficient,  however,  to 
say  that  they  were  directors,  and  acted  as  such.  Having  retained 
their  character  of  directors  up  to  the  month  of  September,.  1825,  what 
have  they  since  done  to  divest  themselves  of  that  character?  It  cer- 
tainly  was  competent  to  them  at  any  time  to  retire  from  the  direction  : 
but,  unless  they  have  expressly  done  so,  and  have  allowed  their  names 
still  to  be  used,  they  must  take  the  consequences :  they  stand  in  the 
like  situation  with  the  members  of  a  partnership,  who,  after  they  have 
seceded  from  the  firm,  still  allow  their  names  to  remain  exposed  to 
view  over  a  shop  door.  It  has  been  contended,  on  the  part  of  the 
defendants,  that,  in  incurring  the  liability  in  question,  the  directors 
exceeded  their  authority  as  directors,  inasmuch  as  the  prospectus  held 
out  that  an  act  of  parliament  would  be  applied  for  to  regulate  the 
concerns  of  the  company.  No  doubt  such  a  course  would  be  more 
convenient  for  the  government  of  such  a  body,  as  they  would  thus 
obtain  power  to  lay  down  pipes,  to  sue  and  be  sued  in  the  name  of  one 
of  their  officers,  and  the  like:  but  it  nowhere  appears  that  the 
obtaining  of  an  act  of  parliament  was  held  out  as  a  condition  prece- 
dent to  the  formation  or  the  company;  neither  does  the  advertisement 
say  anything  about  an  act  of  parliament.  It  is  true  that  the  pros- 
pectus stated  that  an  act  would  be  applied  for :  but  it  was  clearly 
understood  that  the  works  were  to  go  on  in  the  mean  time."  So,  here, 
*15Q1  ^*  clearly  was  intended  that  *the  business  of  this  company 
J  should  go  on  before  any  actual  incorporation. 
Montague  Smith,  Q.  C,  and  Kingdorij  for  the  defendant  Berkeley. — 
There  was  no  evidence  to  fix  Mr.  Berkeley  with  having  given  any 
authority  to  Henson  or  any  other  person  to  enter  into  the  contract 
declared  upon.  All  that  appears,  is,  that  Henson  called  upon  Mr. 
Berkeley  and  asked  him  to  allow  his  name  to  be  inserted  as  a  director 
of  a  company  about  to  be  formed.  The  usual  prospectus  was  issued, 
describing  the  objects  proposed  to  be  attained,  and  describing  the 
company  as  being  intended  "to  be  incorporated  under  the  Joint-Stock 
Companies  Acts  of  1857  and  1858."  No  shares  were  ever  issued : 
nor  was  anything  done  towards  the  formation  of  a  company.  Adver- 
tisements, it  is  true,  appeared  in  the  public  papers,  and  money  was 
received :  but  all  this  was  done  by  Henson  as  the  tool  of  Colonel 
Sleigh.  Not  a  farthing  was  ever  paid  in  to  any  banking-account  of 
the  company.  Mr.  Berkeley  seems  for  the  first  time  to  have  become 
aware  that  Colonel  Sleigh  was  interfering  in  the  concern  on  the  22d 
of  May,  1862 ;  and  on  the  30th  he  wrote  to  Henson  telling  him  he 
would  have  nothing  more  to  do  with  it.  The  fact  of  Mr.  Berkeley 
consenting  to  become  a  director  upon  the  terms  contained  in  the  pros- 
pectus, gave  no  authority  to  Henson  to  use  his  name  otherwise  than 
for  the  purposes  of  a  company  when  formed  and  incorporated.  [Erlb, 
C.  J. — ^You  contend,  that,  as  between  Mr.  Berkeley  and  the  plaintiff 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        169 

the  latter  had  no  right  to  conclude  that  the  issuing  of  tickets  for  the 
transit  to  British  Columbia  was  accredited  by  Mr.  Berkeley  ?]  Exactly 
so.  The  question  is  as  to  the  extent  of  the  real  authority  which  Mr. 
Berkeley  gave  to  Henson.  [Byles^  J. — And  also  the  extent  of  the 
apparent  authority  induced  by  the  acts  of  Mr.  Berkeley.]  There  was 
•neither  original  authority  nor  subsequent  ratification.  The  r»igA 
concluding  sentence  of  the  passage  cited  from  the  judgment  of  '• 
Tindal,  C.  J.,  in  Doubleday  v.  Muskett,  shows  that  that  case  has  no 
application  here.  In  Bourne  v.  Freeth,  9  B.  &  C.  632  (E.  C.  L.  R.  vol. 
17),  4r  M,  &  R.  512,  it  being  in  contemplation  to  form  a  company  for 
distilling  whisky,  the  following  prospectus  was  issued  in  May,  1825, 
— "The  conditions  upon  which  this  establishment  is  formed,  are,  the 
eoncem  will  be  divided  into  twenty  shares  of  lOOif.  each,  five  of  which 
to  belong  to  A.  B.,  the  founder  of  the  works ;  the  other  fifteen  sub- 
scribers to  pay  in  their  subscriptions  to  M.  &  Co.,  bankers,  Liverpool, 
in  such  proportions  as  may  be  called  for :  the  concern  to  be  under  the 
management  of  a  committee  of  three  of  the  subscribers,  to  be  chosen 
annually  on  the  10th  of  October :  10  per  cent,  to  be  paid  into  the 
bank  on  or  before  the  1st  of  June  next."  It  was  held  that  this  pros- 
pectus imported  only  that  a  company  was  to  be  formed,  not  that  it 
was  actually  formed;  and  that  a  person  who  subscribed  his  name 
thereto,  and  who  was  present  at  a  meeting  of  subscribers  when  it  was 
proposed  to  take  certam  premises  for  the  purpose  of  carrying  on  the 
distillerv,  which  were  afterwards  taken,  and  solicited  others  to  become 
shareholders,  but  never  paid  his  subscription,  was  not  chargeable  as 
a  partner  for  goods  supplied  to  the  company.  [Williams,  J. — That 
case,  as  well  as  Fox  v,  Clifton,  4  M.  &  P.  676,  6  Bingh.  776  (E.  C.  L. 
R.  vol.  19),  Reynell  v,  Lewis  and  Wyld  v.  Hopkins,  15  M.  &  W.  517 
and  several  others,  are  cited  in  Smith's  Mercantile  Law,  5th  edit.  104, 
as  authorities  for  this  proposition, — "  The  liability  of  a  member,"— 
that  is,  of  a  joint-stock  company, — "commences  with  the  commence- 
ment of  the  company,  and  he  is  not  responsible  for  contracts  made 
before  that  period  by  its  intended  members  or  directors,  while  prelir 
minaries  on  the  accomplishment  of  which  he  bad  agreed  to  join  the 
•company  are  unaccomplished."]  In  Burnside  v.  Dayrell,  3  r«i  gi 
Exeh.  224,  where  an  allottee  in  a  projected  railway  company  ^ 
had  paid  his  deposit  into  the  bank  named  in  the  prospectus,,  which, 
had  been  circulated  with  the  defendant's  sanction,  his  name  appear- 
ing therein  as  one  of  the  provisional  committee-men  and  as  chairman 
of  the  committee  of  management ;  but  the  defendant  had  not  personally 
superintended  the  allotment  of  shares,  and  had  taken  no  active  part, 
in  the  concern,  and  had  been  present  once  only  at  any  meeting,  when 
he  acted  in  the  capacity  of  chairman,  but  dissented  from  the  proceed- 
ings: in  an  action  by  the  plaintiff  against  the  defendant  for  the  re- 
covery of  his  deposit,  on  the  abandonment  of  the  scheme,  it  was  held 
that  the  defendant  was  not  liable.  So,  in  Barker  v.  Stead,  8  C.  B.. 
946  (E.  C.  L.  B.  vol.  60),  it  was  held  that  one  who  merely  assents  to 
his  name  being  published  in  a  list  of  a  provisional  committee  of  a 
projected  railway  company,  does  not  thereby  impliedly  authorize  the 
secretary  or  any  one  else  to  pledge  his  credit  for  goods  supplied  to  or 
work  done  for  the  company.  [Willes,  J. — There  are  more  recent 
which  are  not  quite  consistent  with  your  argument.  The  fact 
XV.— 8 


161  COLLINGWOOD  v,  BERKELEY.    T.  V.  1863. 

of  the  party  being  a  director  is  more  stringent  than  the  fact  of  hit 
being  a  member  of  the  provisional  committee.]  In  Cooke  v.  Tonkin, 
9  Q.  B.  938  (B.  C.  L.  R.  vol.  58),  the  defendant  was  by  his  consent  a 
member  of  the  provisional  committee  of  a  projected  company :  accord- 
ing to  the  prospectus,  the  aflfairs  were  to  be  under  the  control  of  a 
managing  committee :  a  managing  committee  was  appointed,  and  then 
the  provisional  committee  ceased  to  act:  after  this,  the  solicitor  to  the 
company,  who  had  been  appointed  by  the  provisional  committee, 
gave  orders  for  the  publication  of  advertisements.  In  an  action 
against  the  defendant  for  the  expense  of  inserting  these,  it  was  proved 
that  he  had  twice  attended  meetings  of  the  provisional  committee, 

*1621  *^"*  *^^^  ^®  ^^^  ^^^  ^"  *^®  managing  committee,  nor  a  share- 
J  holder :  and  it  was  held  that  these  facts  constituted  no  evi- 
dence for  a  jury,  of  the  defendant  having  authorized  the  insertion  of 
the  advertisements,  nor  of  his  liability.  In  Bright  v.  Hutton,  8  House 
(Of  Lords  Cases  841,  A.  was  a  member  of  the  provisional  committee 
<jf  a  projected  railway  company  which  had  been  provisionally  regia- 
tered,  and  the  affairs  of  which  were  put  under  the  authority  of  a 
managing  committee  :  he  accepted  shares,  and  paid  a  deposit  on  them, 
but  did  no  further  act;  and  the  scheme  was  abandoned.  It  was  held 
that  on  these  facts  he  was  not  liable  to  a  creditor  for  business  done 
under  the  orders  of  the  managing  committee  towards  completing  the 
projected  undertaking  and  converting  the  association  into  a  regular 
company,  and  consequently  that  he  was  not  liable  as  a  contributory 
under  the  winding-up  acts.  [WiLLES,  J. — Is  that  consistent  with 
Ilutton  V,  Upfill,  2  House  of  Lords  Cases  674?]  That  case  is 
observed  upon  by  Lord  St.  Leonards  in  Bright  v,  Hutton,  3  House  of 
Lords  Cases  888.  The  real  question  here  is,  whether  the  defendants 
gave  any  authority  for  the  doing  of  what  was  done,  or  held  themselves 
out  to  the  world  as  having  given  such  authority, — for,  since  the  cases 
of  Reynell  v,  Lewis  and  Wyld  v.  Hopkins,  the  question  has  been 
properly  treated  as  one  of  agency,  and  not  of  partnership.  There  is 
nothing  in  this  prospectus  calculated  to  induce  any  reasonable  man 
to  assume  that  the  directors  authorized  anything  to  be  done  or  any 
contracts  to  be  entered  into  before  the  projected  company  was  actually 
formed. 

Daly,  in  suppport  of  Jadis's  rule,  submitted  that  there  was  no 
♦1631  ^v'^®*^^®  whatever  to  affect  him.  Cut.  ad^.  vulL 

J       *  Williams,  J.,  now  delivered  the  judgment  of  the  court  :(a)— 

Upon  this  rule  the  question  has  been  whether  there  was  any 
evidence  for  the  jury,  that  the  defendants  were  liable  on  the  contract 
stated  in  the  declaration. 

The  contract  was  made  between  the  plaintiff  and  HensoD.  Henson 
had  given  to  the  plaintiff  a  prospectus  describing  the  defendants,  among 
others,  as  directors  of  the  company  therein  mentioned,  and  hinwclf 
(Henson)  as  secretary :  and  the  plaintiff  stated  that  he  was  induced, 
after  reading  that  prospectus,  to  make  the  contract  in  reliance  on  the 
credit  of  Mr.  Berkeley  and  another  as  directors. 

Now,  was  there  any  evidence  that  the  defendants^  had  authoriwd 
Hanson  to  make  the  contract  for  them,  or  that  they  by  their  permis* 
aiofi  were  held  out  to  the  plaintiff  as  parties  to  the  contract  with  him? 

M  T>e  cai«  was  argaed  before  Brie,  C.  J.,  WiUiams,  J.,  WiHes,  J.,  aod  Bylee^  /. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        168 

The  defendants  contended  that  the  prospectus  contained  merely  a 
proposal  to  form  a  company,  and  that  their  consent  to  become  directors 
was  only  conditional  in  case  the  company  should  be  formed  and  regis- 
tered, and  that  they  had  never  attended  at  the  offices  or  acted  in  the 
directorship,  and  that  there  was  no  evidence  that  they  held  out  to 
the  plaintiff  that  business  would  be  carried  on  by  their  authority  until 
the  above  conditions  had  been  fulfilled. 

But  we  are  of  opinion  that  there  was  evidence  to  support  the 
verdict 

The  prospectus,  although  it  speaks  of  a  company  to  be  formed  and 
registered,  yet  it  also  speaks  of  business  actually  going  on  for  the 
purpose  of  transport, — of  past  arrangements, — of  matters  in  a  course 
of  completion, — and  of  actual  transport  as  about  to  commence  forth- 
with (that  is,  when  the  prospectus  was  issued).  It  ♦states,  "  that  r^-toA 
the  overland  route  from  Canada  has  been  organized  by  the  pro-  ^ 
moters  of  the  Overland  Transit  Company.  Several  surveys  have 
resulted  in  having  a  direct  road,  which,  with  a  perfect  organization 
of  land-transport,  is  at  once  available."  Then,  after  describing  the 
route,  it  proceeds, — *'  The  corporation  will  forthwith  organize  a  perfect 
land-transport  train  of  horses  and  spring-carts  adapted  for  passengers 
and  goods,  and  erect  log-shanties  at  intervals,  &c, ;  and  cattle  will  be 
collected  at  these  stations."  ''  By  the  arrangements  already  in  a  state 
of  forwardness  in  Canada,  from  instructions  sent  out  to  its  agents, 
there  can  be  no  question  but  that  the  route  will  be  placed  in  a  perfect 
state.  Applications  have  been  made  to  the  legislative  councils  of 
Columbia  and  Canada  for  charters."  Ac.  *'As  the  route  from  Fort 
William  to  the  Red  River  would  require  some  delay  to  be  put  in  a 
state  for  traffic,  the  Overland  Transit  Company  purpose,  for  the  first 
twelve  months,  that  passengers  should  proceed  to  Fond  du  Lac,"  &c., 
&c  "  And,  to  obviate  the  necessity  of  the  slightest  delay  in  opening 
up  the  first  portion  of  the  route  to  Red  River,  reciprocal  arrangements 
are  in  a  course  of  completion,  by  which  this  company  can  without 
any  delay  forward  its  passengers  to  Detroit,  and  thence  to  Chicago, 
and  thence  to  St.  Paurs.  ''The  British  Columbia  Overland  Transit* 
Ciompany  is  enabled  to  start  with  the  full  advantages  of  the  act  for 
limited  liability,  and  may  fairly  expect  to  receive  large  dividends." 

These  passages  express  to  an  ordinary  reader  that  operations  respect- 
ing transport  had  been  and  were  then  in  Ae  course  of  being  carried  on. 
To  a  technical  reader,  there  are  expreaaions  which  might  raise  sus- 
picion; such  as  the  variety  of  names^  ''company,"  ''corporation,^ 
''promoters:"  but  the  jury,  {torn  the  wordd  ana  circumstances,  had  a 
right  to  infer  that  it  *waa  intended  to  induce  passengers  to  pay  r*^^^ 
fares  for  immediate  transport^  and  applicants  for  shares  to  ^ 
pay  immediate  deposits :  and,  if  so,  there  is  evidence  that  the  defendantf^ 
were  by  their  consent  held  out'as  directing  that  concern^  and  therefore 
bound  by  contracts  eonnected  thierewitb  made  in  a  regular  course  of 
bosinessL 

There  is  nothing  to  show  thai  the  oom]^Dy  had  not  been  inoor^ 
porated,  or'  might  not  be  at  any  nmrnenit  Also,  there  is  nothing 
showing  that-  the  companj  wovld  not  adt,  an  it^  lawfully  might,  befbra 
inooipM«tiott4  and  thiuro  is  sfidencv  ta  Bhvrtfia^t' the  words  wen) 


165  COLLINGWOOD  v.  BERKELEY.    T.  V.  1863. 

intended  to  represent  arrangements  for  transport  actually  existing; 
for,  tbe  plaintiff  states  that  he  found  arrangements  made  as  described. 
His  evidence  in  effect  is,  that  he  was  carried  smoothly  under  the 
described  arrangements  as  far  as  St.  PauPs,  and  might  have  been 
carried  on  to  his  destination,  if  the  company  had  been  in  credit  with 
their  correspondents  there  who  were  expected  to  supply  horses  and 
carts  from  thence,  and  who  refused  to  act  because  they  would  not  take 
bills  on  the  company  for  their  services,  but  required  cash. 

The  conduct  of  the  defendants  in  accepting  the  oflSce  of  directors, 
warranted  the  jury  both  in  adopting  any  construction  of  the  prospectus 
which  the  words  would  bear  to  support  the  plaintiff's  claim,  and  also 
in  disregarding  the  argument  for  them  founded  on  the  want  of  notice 
of  the  proceedings  in  Copthall  Court. 

The  evidence  relating  to  that  conduct  on  the  surface  is  very  concise. 
Henson  showed  the  prospectus,  and  asked  each,  "  Will  you  be  a 
director?"  Each  in  effect  answered,  "Yes,  provided  I  am  qualified 
and  indemnified."  This  is  all  that  is  on  the  surface.  But  beneath 
there  was  matter  of  deep  significance  for  the  jury  to  consider.  There 
was  some  evidence   that  schemes  for  *companies  abounded : 


»166] 


every  letter  refej*s  to  more  than  one;  and  Mr.  Berkeley,  in  a 


letter,  observes  to  the  effect  that  he  was  a  director  of  so  many  that  his 
estimation  would  be  perilled  with  his  constituency.  There  was  also 
some  evidence  that  men  of  established  credit,  willing  to  sell  the  use  of 
their  names  as  directors  to  the  projectors  of  these  schemes,  abounded 
also.  The  language  and  the  manner  used  on  the  occasion,  that  is  to  say, 
a  short  question  and  answer,  showed  that  the  transaction  was  of 
frequent  occurrence. 

There  was  no  inquiry  of  the  nature  of  the  scheme,  or  of  the 
character  of  Henson  or  of  his  principal,  and  no  indication  that  either 
defendant  ever  intended  to  employ  either  thought  or  money  in 
furtherance  of  the  scheme,  whatever  it  might  be.  The  truth  was,  that 
Colonel  Sleigh,  a  schemer  in  discredit,  wished  to  obtain  the  cash  of 
the  unwarjT  upon  a  prospect  of  a  land  transport  to  Columbia.  This 
purpose  might  be  effected,  if  he  could  hold  out  men  of  credit  as 
directing  it.  Mr.  Berkeley,  from  his  position  in  parliament,  and  Mr. 
Jadis,  a  government  oflScer,  in  the  department  of  the  Board  of  Trade, 
would  give  assurance  that  the  scheme  was  sanctioned  by  honour  and 
sense  and  money.  Therefore  Colonel  Sleigh  sent  to  buv  the  use  of 
their  names ;  and  they  sold  it  to  him  for  an  indemnity  and  a  premium, 
possibly  of  the  value  of  20007.,  to  be  taken  from  the  funds  of  the 
company;'  that  is,  they  were  to  have  Colonel  Sleigh's  indemnity 
against  any  responsibility  caused  by  the  use  of  their  names,  and,  if 
Colonel  Sleigh  by  that  use  raised  the  whole  or  a  sufficient  part  of  the 
projected  capital  of  600,000t,  they  were  to  receive  each  200  paid-up 
shares  of  10/.  each. 

This  transaction  of  the  prospectus  bears  the  meaning  here  attributed 
to  it.  It  authorized  Henson  or  Sleigh  to  hold  out  that  the  defendants 
*1671  ^^^^  TeaXly  directing  them  *in  obtaining  fares  from  emigrants 
^  for  transport  and  deposits  from  applicants  for  shares.  As 
against  these  defendants,  the  jury  were  warranted  in  deciding  that 
they  did  whatever  Henson  by  their  authority  represented  they  were 
doing,  within  the  limits  of  the  operations  described  in  the  prospectus. 


COMxMON  «ENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        167 

and  that  therefore  they  were  liable  on  the  contract,  within  those  limits, 
which  Henson  made  for  them  on  the  credit  of  their  names. 

It  is  a  rule,  that,  when  one  of  two  innocent  parties  is  to  suffer  by 
the  fraud  of  a  third,  he  who  gave  occasion  for  the  fraud  should  bear 
the  loss.  Upon  this  principle,  the  decision  ought  to  be  against  the 
defendants,  if  there  was  a  balance.  The  plaintiff  is  certainly  an  in- 
oocent  party ;  but  the  defendants,  though  not  guilty  of  direct  fraudu- 
lent intention,  gave  the  occasion  which  made  the  fraud  successful. 

The  jury  were  also  warranted  in  thinking  that  the  conduct  of  uhe 
defendants  after  the  interview  with  Henson,  indicated  that  they  had 
intended  all  along  to  leave  the  management  of  the  affairs  of  the  com- 
pany to  the  direction  of  the  projectors,  without  interference  on  their 
part.  Upon  any  other  supposition,  it  is  strange  that  men  in  the  posi- 
tion of  these  defendants,  living  in  London,  if  they  intended  to  be  real 
directors,  should  not  during  two  months  make  a  single  inquiry  about 
their  company,  or  visit  the  oflSces,  or  send  for  Henson  to  know  what 
was  going  on.  Strange,  also,  that  their  names  should  be  advertised  in 
the  Times  for  weeks,  and  they  should  not  see  it,  and  no  one  should 
mention  it  to  them,  unless  the  nature  of  the  transaction  was  under- 
stood to  be  as  last  described.  Still  more  strange,  that  neither  of  the 
defendants  interfered  to  inquire  or  remonstrate,  when  it  was  known 
that  contracts  in  their  names  had  been  made  for  transport,  and  that 
the  hardships  and  perils  so  shocked  the  *humanity  of  strangers  r»i  go 
as  to  produce  the  letters  signed  "  West  Canada,"  and  the  inter-  ^ 
ference  of  a  member  in  parliament  to  endeavour  to  save  the  emigrants 
from  their  fate.  Mr.  Jadis  did  nothing.  Mr.  Berkeley  in  his  letters 
expresses  neither  suspicion  nor  dissent  in  respect  of  the  contracts 
made :  and  those  letters  result  in  merely  withdrawing  his  name  from 
the  directorship,  for  the  sake  of  avoiding  responsibility  after  that 
date, — leaving  the  liability  for  transactions  previous  to  that  date  as  it 
might  be  established.  The  jury  may  have  thought  that  the  defend- 
ants had  trusted  all  arrangements  to  the  discretion  of  the  projector, 
and  that  therefore  they  must  trust  now  to  an  indemnity  from  him 
against  the  responsibility  brought  by  him  on  them. 

The  facts  of  this  case  are  peculiar,  and  differ  materially  from  those 
that  have  been  cited  ;  so  that  it  is  not  worth  the  time  to  analyze  them 
further  than  to  say,  that  in  Doubleday  v.  Muskett,  7  Bingh.  110  (E.  C. 
L.  R.  vol.  20),  4  *M.  &  P.  750,  two  directors  of  a  proposed  company 
were  held  liable  for  contracts  made  by  the  board  without  their  know- 
ledge before  the  company  was  formed,  because  they  had  consented  to 
a  commencement  of  the  works  of  the  intended  company.  Here,  the 
defendants,  as  directors,  according  to  one  construction  of  the  prospec- 
tus, had  represented  that  the  works  of  the  intended  company  had  been 
and  were  in  operation.  In  Bourne  v.  Freeth,  9  B.  &  C.  632  (E.  C.  L. 
B.  vol.  17),  4  M.  &  R.  512,  the  defendant  was  a  real  shareholder,  who 
bad  really  paid  up  a  deposit,  and  belonged  to  an  entirely  different 
class  from  that  of  these  defendants ;  and  a  decision  in  his  favour  is  of 
DO  avail  for  these  defendants. 

The  question  before  us  has  been  confined  to  the  claim  for  breach  of 
contract :  and  we  think  the  plaintiff  has  a  right  to  recover  an  indem- 
nity upon  a  count  in  form  ex  contractu ;  and  it  is  not  relevant  now  to 


160  COLLINGWOOD  v.  BERKELEY.    T.  T.  1863. 

••1691  *^'^^^^''®  whether  he  could  have  recovered  the  same  indemnity 
-•   in  form  ex  delicto,  for  holding  out  false  representations,  to  the 
damage  of  those  who  acted  on  them. 

It  may  be  true  that  the  defendants  did  not  themselves  speak  what 
they  knew  to  be  false,  and  nevertheless  they  may  be  liable  for  holding 
out  false  representations :  and,  if  it  was  supposed  that  the  Chief  Jus- 
tice had  expressed  an  opinion  upon  the  law  to  the  contrary  of  this  at 
the  trial,  his  meaning  was  not  understood.  Bulo  discharged. 

END  OF  TRINITY  VACATION. 


*170]      *IN  THE  EXCHEQUER  CHAMBER. 

SIB  JOHN  BROCAS  WHALLEY  SMYTHE  GARDINER.  Bart., 
V.  ELIZABETH  JANE  JELLICOE,  Widow.    July  4. 

Judgment  of  the  Common  PleM  (12  C.  B.  N.  S.  568)  affirmed. 

This  was  an  appeal  against  a  decision  (by  a  majority)  of  the  Court 
of  Common  Pleas,  making  absolute  a  rule  to  enter  a  verdict  for  the 
plaintiflF  in  an  action  of  ejectment  brought  by  him  to  recover  the  pos- 
session of  certain  lands  in  the  county  of  Lancaster,  called  "  The  Clerk 
Hill  Estate,"  which  he  claimed  to  be  entitled  to  under  the  will  of  his 
grandfather,  Sir  James  Whalley  Smythe  Gardiner,  Bart.,  deceased. 

The  appeal  was  argued  on  the  19th  and  20th  of  June,  1863,  before 
Pollock,  C.  B.,  Wightman,  J.,  Crompton,  J.,  Channell,  B.,  and  Black- 
burn, J.,  by 

Sir  Hugh  Cairns^  Q.  C.  (with  whom  were  Manisty,  Q.  C,  and  Udall), 
for  tbe  appellant,  the  defendant  below,  and  by 

The  Solicitor -General  (with  whom  were  Mellish,  Q.  C,  and  Quain), 
for  the  respondent,  tbe  plaintiflF  below. 

The  Court  took  time  to  consider ;  and  their  unanimous  judgment 
was  now  delivered  by 

Pollock,  C.  B. — We  are  all  of  opinion  that  the  judgment  of  the 
court  below  should  be  affirmed. 

♦1711  ^^  ^^  *^®  ^^^^  point  made  by  Sir  Hugh  Cairns  for  •the  de- 
-'  fendant,  it  seems  to  us  that  the  estates  limited  by  the  deed  of 
1814  were  legal  estates.  The  parties  seised  of  the  legal  estate  convey 
expressly  to  the  use  of  Robert  and  his  sons,  and  then  to  the  uses  de- 
clared in  the  will  of  the  testator,  which  are  clearly  legal  uses,  to  which 
the  trustees  having  the  legal  estates  are  by  the  will  directed  to  limit 
tbe  legal  estate.  This  could  hardly  be  denied,  except  as  to  the  estates 
to  arise  under  the  shifting-clause,'  and,  even  if  the  estates  to  arise 
und'er  that  clause  were  merely  equitable  estates,  as  the  preceding  es- 
tates are  clearly  legal,  the  result  would  be  that  the  plaintiff  claiming 
under  a  limitation  of  the  legal  estate  would  be  entitled  to  succeed  in 
this  ejectment,  and  the  defendant's  remedy  under  the  shifting-clause 
would  be  in  equity  only. 

We  think,  however,  that  the  deed  is  intended  and  does  carry  out 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)       171 

the  meaniDg  of  tbe  testator,  by  conveying  the  legal  estate  to  releasees 
to  uses,  so  that  the  legal  estate  may  vest  as  the  uses  arise, in  the  events 
apon  the  "happening  of  which  the  estates  directed  by  the  will  to  be 
limited  arise,  and  which  are  clearly  intended  by  the  will  to  be  legal 
estates :  and  we  think  that  this  extends  to  the  estates  to  arise  under 
the  shifting-clause,  as  well  as  to  the  other  limitations. 

As  to  the  second  point,  which  is  the  real  question  in  the  case,  we 
agree  with  the  construction  put  upon  the  shifting-clause  by  the  ma- 
jority of  the  court  below.  We  thiuk  that  the  real  construction  is, 
that,  in  the  event  of  the  estates  coming  together,  within  the  meaning 
of  the  shifting-clause  (whatever  be  the  construction  of  the  words 
*' coming  to  the  possession"),  tbe  person  next  in  remainder  is  to  come 
in  as  if  the  person  who  would  otherwise  have  come  into  possession 
were  dead  without  issue ;  so  that  the  real  effect  of  the  clause  is,  to  let 
in  the  person  who  would  be  next  in  remainder  if  the  person  who 
otherwise  would  have  had  both  *estates  were  dead  without  r*i7o 
issue;  in  other  words,  to  accelerate  the  next  remainder.  '- 

We  think  that  it  would  be  a  strained  construction,  to  hold  that  the 
words  "that  the  person  next  in  remainder,"  &c.,  should  come  in  **as  if 
the  party  were  dead  without  issue,"  meant  that  the  whole  will  should 
be  treated  as  if  the  person  were  actually  out  of  existence  without  issue 
for  all  the  purposes  of  the  will  :*and  we  do  not  think  that  the  testator 
would  have  been  likely  so  to  have  directed,  if  he  had  contemplated 
that  he  would  thereby  be  excluding  female  issue,  who  would  never 
have  taken  the  Gardiner  estates,  but  who  could  come  in  under  the 
very  limitation  now  in  question. 

We  think  that  the  meaning  of  the  words  "the  person  next  in  re- 
mainder," &c.,  is,  that  such  next  remainder  is  to  come  into  play,  and 
that  the  remainders  over  continue  unaffected  and  are  to  arise  according 
to  the  limitations,  subject  to  be  divested  again  by  the  operation  of  the 
shirting-clause,  if  that  clause  should  come  into  operation  by  the  estates 
again  coming  together  within  the  meaning  of  the  shifting-clause. 
The  judgment  of  the  court  below  is  therefore  aflBrmed. 

Judgment  affirmed. 


CASES    • 

ABQUED  AND  DETERMINED 


COURT  OF  COMMON  PLEAS 


JElif[iQelmn3  €ttm, 


TWENTY-SEVENTH  YEAR  OF  THR  REIGN  OF  VICTORIA.     1863. 


The  Judges  who  usually  sat  in  banco  in  this  Term,  were, — 
Erle,  0.  J.,  Byles,  J., 

Williams,  J.,  Keating,  J. 


HANS  RINGLAND,  the  younger,  by  WILLIAM  RINGLAND  his 
Prochein  Amy,  v.  JOSEPH  LOWNDES,  Clerk  of  the  Burslem 
Local  Board  of  Health.     Nov.  14. 

A  party  who  attends  before  an  arbitrator,  though  under  protest,  cross-examines  his  adver- 
sary's witnesses,  and  calls  witnesses  on  his  own  behalf,  thereby  waives  all  ol^jections  to  th« 
proceedings  which  do  not  go  to  the  competency  of  the  tribanaL 

Under  the  Public  Health  Act  (II  A  12  Vict  c.  63),  where  a  disputed  claim  to  compensaUon 
is  to  be  settled  by  arbitration,  the  award  is,  by  s.  124,  to  be  made  "  within  twenty-one  days 
after  the  appointment  of  the  arbitrator,  or  within  such  extended  time,  if  any,  as  shall  have  been 
duly  appointed  by  him  for  that  purpose."  By  s.  125  it  is  provided,  that,  in  case  the  arbitrators 
neglect  or  refuse  to  appoint  an  umpire  for  •fv«n  dayt  after  beiug  requested  so  to  do  by  any 
pnrty,  the  sessions  shall,  on  the  application  of  such  party,  appoint  an  umpire.  And  by  s.  12l( 
it  is  further  provided  that  the  time  for  making  an  award  under  the  act  shall  not  be  extended 
beyond  the  period  of  three  months  from  the  date  of  the  submission  or  from  the  day  on  which 
the  umpire  ehall  have  been  appointed,  as  the  ease  may  be. 

In  1856,  the  plaintiff  sustained  damage  from  the  construction  of  works  by  a  local  board,  and 
in  1858  made  a  claim  for  compensation.  He  afterwards  obtained  a  rule  for  a  mandamus  com- 
manding the  board  to  make  compensation.  Arbitrators  were  afterwards  (in  January,  1861) 
appointed  to  assess  the  amount,  under  s.  123.  These  having  refused  to  appoint  an  umpire,  tbo 
plaintiff  applied  to  the  Easter  sessions  to  appoint  one,  but  failed  in  consequence  of  the  want  of 
a  notice  of  his  intention  to  make  such  application.  The  required  noUce  having  been  given,  a 
second  application  was  made  at  the  Midsummer  sessions,  and  one  J.  was  named  as  umpire,  bat, 
as  his  consent  had  not  been  obtained,  no  formal  appointment  was  then  made.  A  third  appli> 
eation  was  made  at  the  Michaelmas  sessions,  and  J.  was  on  (he  \Uh  of  October  appointed 
amplre,  and  accepted  the  appointment. 


COMMON  BENCH  EEPORTS.    (16  J.  SCOTT.    N.  S.)        173 

On  the  IZth  of  Nomther,  tha  ampira  (not  having  enlarged  tXt  time  for  making  hie  award) 
•ppointed  the  29th  for  entering  npon  the  arbitration.  The  counsel  for  the  board,  being  informed 
of  this  objection,  proteeted  against  the  ampire's  going  on  with  the  reference,  bat  etiil  attended, 
cross-examined  the  plaintiff's  witnesses,  and  called  witnesses  for  the  board ;  and  at  the  close 
of  the  business  intimated  to  the  umpire  that  the  board  would  relg  upon  their  proteet  in  caee  the 
award  ehonld  be  againet  tkem.  The  umpire  made  his  award  in  favour  of  the  plaintiff  on  the 
30th  of  December. 

In  an  action  upon  the  award, — 

Held, — 1.  That  the  appointment  of  the  umpire  in  reality  took  place  at  the  Michaelmas  ses- 
sions, ftod  was  in  time,  and  consequently  the  award  was  duly  made  within  three  months  from 
tbe  umpire's  appointment. 

2.  That,  although  the  umpire  had  failed  to  comply  with  the  requirement  of  tbe  124th  and 
126th  sections  of  the  act  by  enlarging  the  time  for  making  his  award  within  twenty-one  days 
of  his  appointment,  that  defect  was  cured  by  the  attendance  of  the  board  and  their  taking  part 
in  the  subsequent  proceedings. 

3.  That  the  plaintiff  was  entitled  to  a  mandamus  (under  the  Common  Law  Procedure  Act, 
1854),  commanding  the  board  to  make  and  levy  a  rate  to  satisfy  the  amount  of  the  award  and 
the  eosts  of  the  reference,  although  the  six  months  limited  by  the  89lh  section  of  the  Publie 
Health  Act  for  the  making  of  retrospective  rates  had  elapsed  since  the  damage  was  done, — the 
action  having  been  commenced  within  six  months  after  the  making  of  the  award,  and  it  not 
appearing  that  the  plaintiff  had  been  guilty  of  any  laches. 

4.  That  it  was  no  answer  to  the  claim  for  a  mandamus,  that  by  possibility  the  board  might 
have  funds  enough  in  hand  to  satisfy  the  demand,  without  making  a  fresh  rate. 

This  action  was  brought  against  the  defendant,  who  is  the  clerk  of 
the  Burslem  local  board  of  health,  to  obtain  the  sum  of  1361. 16s.  as  com- 
pensation for  damage,  and  154/.  for  costs,  und^r  an  award  dated  the 
30th  of  December,  1861,  and  also  a  writ  of  mandamus  commanding 
the  Burslem  local  board  of  health  to  levy  a  rate  in  pursuance  of  the 
Public  Health  Act,  1848,  for  the  payment  to  the  plaintiflF  of  the  said 
sums  of  money. 

*The  cause  came  on  for  trial  before  Byles,  J.,  £it  the  Stafford  r^i-inA 
Summer  Assizes,  1862,  when  a  verdict  was  taken  for  the  plain-   ^ 
as,  by  consent  fpr  the  sums  named  in  the  declaration,  subject  to  a 
special  case.(a) 

(a)  The  pleadings,  which  were  to  form  part  of  the  case,  consisted  of  a  declaration  upon  the 
award,  which  concluded  as  follows : — ''  And  for  that  the  plaintiff  having  become  entitled  by 
reason  of  the  premises  and  by  virtue  of  the  said  award  of  the  said  umpire  to  have  the  said 
moneys  paid  to  him  by  the  said  board  out  of  the  general  or  special  district  rates  to  be  levied 
under  the  said  act,  and  a  reasonable  time  having  elapsed  for  the  said  board  to  make  and  levy 
a  rate  under  the  said  act  for  the  payment  to  the  plaintiff  of  the  said  moneys,  and  it  having 
become  and  being  the  duty  of  the  said  board  to  make  and  levy  a  rate  according  to  the  provi- 
sions of  tbe  said  act  in  that  behalf  for  the  said  moneys  so  payable  by  them  to  the  plaintiff,  and 
the  plaintiff  being  personally  interested  in  having  the  said  rate  so  made  and  levied  as  aforesaid, 
and  In  being  paid  the  said  moneys  out  of  such  rate  within  the  meaning  of  the  Common  Law 
Proeedore  Act,  1854,  and  the  plaintiff,  being  so  interested  as  aforesaid,  duly  demanded  of  and 
requested  the  said  board  to  make  and  levy  a  rate  in  pursuance  of  the  said  statute  for  the  said 
moneys  so  payable  to  him,  and  interest  thereon,  and  the  costs  occasioned  him  by  reason  of  the 
non-payment  thereof,  and  to  pay  him  the  said  moneys,  interest,  and  costs  out  of  such  rate  when 
made,  levied,  and  received  by  them,  but  the  said  board  have  wholly  neglected  and  refused  so 
to  do :  and  the  plaintiff  claims  300/.  and  a  writ  of  mandamus  commanding  the  said  board  to 
make  and  levy  a  rate  in  pursuance  of  the  said  act,  for  the  payment  to  the  plaintiff  of  the  said 
moneys  so  due  and  payable  to  him  as  aforesaid  out  of  the  said  rates,  and  interest  and  costs  as 
•foresaid,  and  to  proceed  with  all  due  diligence  to  collect  and  raise  the  said  rates  and  the  said 
moneys,  and  to  pay  him  the  said  moneys  and  interest  and  costs  out  of  the  said  rate  when  so 
made,  levied,  collected,  and  raised." 

Tbe  picas  were, — first,  that  Johnson  did  not  make  any  such  award  as  alleged, — secondly, 
that  Johnson  was  not  duly  appointed  umpire  as  alleged, — thirdly,  that  Johnson  was  duly 
appointed  such  umpire  as  aforesaid  in  the  said  matters  and  dispute  by  the  court  of  general 
quarter  sessions  of  the  peace  holden  at  Stafford,  Ac,  at  Midsummer,  to  wit,  on  the  1st  of  July, 
1861,  on  the  application  of  the  plaintiff  according  to  the  said  statute,  and  that  he  the  said  T. 
Johnson  accepted  the  said  appointment^  and  thereupon  ought,  pursuant  to  the  said  statat«|  to 


175  lilNGLAND  v,  LOWNDES.     M.  T.  1863. 

*1751       *^'  ^'^  *^®  y®*^  ^^^^'  *^®  Public  Health  Act,  11  &  12  Vict. 

-*  c.  63,  was  applied  to  the  town  of  Burslem,  in  Staffordshire; 
and,  by  virtue  of  the  powers  therein  contained,  the  local  board  of  health 
*1761  ^^^  ^^^*  ^^^^  *began  to  lay  dowp  a  system  of  sewers  withiu 

J   the  precincts  of  the  town,  for  the  drainage  thereof. 

2.  Hans  Ringland,  the  younger,  the  plaintiflF  in  this  action,  is  the 
♦1771   ^^'^^^  ^^  four  houses  in  Waterloo  Road,  *Burslern:  and  the 

^  defendant  is  tHe  clerk  to  the  Burslem  Local  Board  of  Health. 

3.  In  the  year  1856,  the  said  houses  of  the  plaintift*  were  alleged  to 
have  been  materially  damaged  by  the  operations  necessary  to  con- 
struct the  said  sewers ;  and  in  1858  application  was  made  by  the 
plaintiff's  attorney  to  the  local  board  of  health  for  the  town  of  Burs- 
lem, through  their  attorney,  for  compensation,  and  a  request  was  also 
made  that  they  would  appoint  an  arbitrator  under  the  123d  section  of 
the  Public  Health  Act,  to  whom  the  matter  in  dispute  might  be 
referred. 

4.  A  rule  was  subsequently  obtained  for  a  mandamus,  commanding 
the  board  to  make  compensation;  and  this  rule  was  made  absolute: 

have  made  and  pabliahed  his  award  within  three  calendar  months  from  the  day  on  whioh  he 
was  so  appointed,  to  wit,  the  said  Ist  day  of  July,  bat  he  wholly  failed  so  to  do,  and  did  nothing 
whatever  under  the  said  appointment;  and  that  thereupon,  after  the  expiration  of  the  said  three 
calendar  months  from  the  said  1st  of  July,  the  said  matters  and  dispute  ought  to  have  been 
again  referred  to  arbitration,  pursuant  to  the  provisions  of  the  said  act,  as  if  no  former  refer- 
ence or  appointment  of  arbitrators  or  umpire  had  been  made;  yet  that  afterwards,  and  after 
the  expiration  of  the  said  three  calendar  months,  to  wit,  on  the  said  14th  of  October,  without 
any  fresh  or  new  reference  of  the  matters  and  dispute  aforesaid  being  made,  or  any  arbitrator 
being  appointed  or. reappointed  by  or  on  behalf  of  the  plaintiff  or  the  said  board,  the  said  T. 
Johnson  was  appointed  umpire  by  the  said  court  of  quarter  sessions  as  in  the  declaration  men- 
tioned, on  the  application  of  the  plaintiff,  and  without  the  consent  and  against  the  will  and 
protest  of  the  said  board,  which  last-mentioned  appointment  of  the  said  T.  Johnson  as  umpire 
as  aforesaid  was  and  is  the  appointment  in  the  declaration  mentioned ;  wherefore  the  defendant 
said  that  the  said  appointment  in  the  declaration  mentioned  was  and  is  null  and  void, — fourthly, 
that  the  said  T.  Johnson,  having  been  appointed  umpire  on  the  said  14th  of  October,  as  in  the 
declaration  mentioned,  ought,  according  to  the  provisions  of  the  said  act,  within  twenty-one 
days  after  his  said  appointment,  to  have  made  his  said  award,  or  to  have  extended  the  time 
for  making  the  same;  yet  that  he  did  not  within  twenty -one  days  after  his  said  appointment 
«make  the  said  award,  or  extend  the  time  for  making  the  same,  but  wholly  failed  to  make  the 
same  within  twenty-one  days  after  his  said  appointment  or  within  any  extended  time  duly 
appointed  by  him  for  that  purpose;  and  so  the  defendant  said  that  the  said  T.  Johnson  did  not 
make  his  said  award  within  the  time  required  by  the  said  statute  in  that  behalf;  and  that 
thereupon  the  said  award  is  wholly  null  and  void.     Issue  thereon. 

Second  replication  to  the  third  plea, — that  the  plaintiff  and  the  said  board  duly  waived  all 
objections  to  the  said  second  appointment  of  the  said  T.  Johnson,  and  consented  and  agreed 
to  his  acting  under  such  second  appointment 

Demurrer  thereto,  the  ground  of  demurrer  alleged  being,  **  that  the  authority  of  the  court  of 
quarter  sessions  under  the  statute  to  appoint  an  umpire  having  been  duly  exercised  at  one 
sessions,  no  waiver  or  consent  would  give  it  authority  to  re -appoint  him  at  a  subsequent  ses- 
sions."   Joinder. 

Second  replication  to  the  fourth  plea, — that  the  said  T.  Johnson  duly  extended  the  time  for 
making  the  said  award  beyond  the  said  twenty-one  days,  and  duly  made  his  said  award  within 
such  extended  time,  and  within  three  months  from  the  day  on  which  he  was  appointed  umpire, 
•coording  to  the  statute  in  such  case  made.    Issue  thereon. 

Third  replication  to  the  fourth  plea, — that  the  plaintiff  and  the  said  board  duly  waived  all 
Ql^eotions  to  the  said  T.  Johnson  acting  as  umpire  after  the  expiration  of  the  said  twenty-one 
days,  and  duly  consented  and  agreed  to  his  acting  as  umpire  up  to  and  at  the  time  when  he 
■ude  his  said  award,  and  to  his  then  making  his  said  award. 

Demurrer  thereto,  the  ground  of  demurrer  stated  in  the  margin  being,  **  that  the  authority 
of  the  umpire  under  the  statute  having  expired,  no  waiver  or  consent  could  restore  it."    Joinder. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        IH 

but  eveataally  the  *plaintiff,  on  the  17th  of  December,  1860,  r«-i»7g 
appointed  Henry  Ward  to  act  as  arbitrator  under  the  said  •• 
statute  on  his  behalf,  and  gave  the  said  board  notice  of  the  appoint- 
ment, and  required  them  to  appoint  another  arbitrator  on  their  behalf 
within  the  time  required  bj  the  statute,  or  otherwise  the  said  Henry 
Ward  would  proceed  ex  parte:  and  thereupon,  on  the  2d  of  January, 
1861,  the  board  appointed  Richard  Stone,  of  D^rby,  to  act  as  arbitra- 
tor on  their  behalf. 

5.  The  arbitrators  having  refused  to  appoint  an  umpire,  an  applica* 
tion  was  made  by  the  plaintiff,  under  the  125th  section  of  the  Public 
Health  Act,  on  the  11th  of  April,  1861,  at  the  Easter  sessions,  to  the 
court  of  quarter  sessions  for  the  county  of  Stafford,  to  appoint  an 
umpire  under  the  said  section. 

6.  The  application  was  resisted  by  the  board  on  several  grounds ; 
and  was  refused,  upon  the  ground  that  the  plaintiff  had  not  complied 
with  the  rules  of  the  court  of  quarter  sessions,  by  giving  seven  days' 
notice  to  the  board  of  his  intention,  as  required  by  the  practice  of  that 
court. 

7.  The  required  notice  having  been  given,  a  second  application  was 
made  at  the  Midsummer  sessions,  on  the  3d  of  July  in  the  same  year, 
to  the  court  of  quarter  sessions.  What  took  place  at  those  sessions 
was  as  follows : — The  counsel  for  the  plaintiff  moved  for  the  appoint- 
ment of  an  umpire.  After  hearing  counsel  for  the  board,  who  opposed 
the  application,  the  court  decided  that  they  would  appoint  an  umpire ; 
and,  after  further  discussion,  Mr.  Thomas  Johnson,  of  Lichfield,  archi- 
tect and  land  surveyor,  was  fixed  upon  by  the  court  as  such  umpire. 
Mr.  Johnson  was  not  present ;  and  neither  side  was  instructed  as  to 
whether  he  would  consent  to  act.  It  is  the  duty  and  practice  of  the 
clerk  of  the  peace  to  make  an  entry  of  the  acts  and  proceedings  of  the 
court,  from  which  the  orders  of  *the  court  are  subsequently  r*i  79 
formally  drawn  up ;  and  there  is  no  other  entry  made  by  the  ^ 
chairman  or  otherwise  of  motions  or  orders  of  the  kind  referred  to. 
No  order  would  in  the  course  of  practice  be  formally  drawn  up  unless 
the  assent  of  the  umpire  to  act  had  been  previously  obtained ;  but  the 
representation  of  counsel  at  the  sessions  would  be  treated  as  sufficient 
toT  that  purpose.  On  this  occasion,  Mr.  Johnson  was  not  present,  and 
neither  side  was  instructed  as  to  whether  he  would  .or  would  not  con- 
sent to  act.  The  clerk  of  the  peace  advisedly  abstained  from  making 
any  entry  of  or  relating  to  any  nomination  or  any  appointment  of  aU 
umpire ,  but,  if  the  assent  of  Mr.  Johnson  had  been  obtained  or  signi- 
fied before  the  end  of  the  sessions  (and  there  was  time  to  communicate 
with  him),  the  clerk  of  the  peace  would  have  then  informed  the  court 
of  that  assent,  and  made  an  entry  of  the  appointment  of  Mr.  Johnson, 
and  the  order  would  have  been  afterwards  drawn  up  and  an  office 
copy  sent  to  Mr.  Johnson  without  the  further  intervention  of  the 
parties.  No  assent  having,  however,  been  obtained  or  signified,  no 
minute  or  record  whatever  was  made  of  any  appointment  or  order; 
and  none  was  drawn  up.  The  clerk  of  the  peace,  upon  being  subse- 
quently applied  to  as  to  what  had  been  done  in  the  matter,  stated  that 
DO  order  had  been  made;  his  view  being,  that  no  order  was  made,  the 
consent  of  the  umpire  not  having  been  obtained. 

8.  At  the  following  quarter  sessions,  on  the  14th  of  October,  1861^ 


179  RINGLAND  v.  LOWNDES.    M.  T.  1863. 

another  application  was  made  to  the  said  court  of  quarter  sessions  for 
the  appointment  of  an  umpire.  The  application  was  resisted  by 
counsel  on  behalf  of  the  board,  on  the  ground  that  a  valid  appoint* 
ment  of  umpire  was  made  at  the  Midsummer  sessions,  notwithstanding 
*1 801  ^^^^  ^^  entry  was  made  of  it  in  the  books  of  the  court;  and  that, 
-'  as  the  umpire  *had  failed  to  make  his  award  within  the  period 
of  three  months  from  the  date  of  his  appointment,  the  matter  referred 
to  him  should  be  again  referred  to  arbitration,  as  if  no  former  refer- 
ence had  been  made,  pursuant  to  the  provisions  of  the  statute;  and 
consequently  that  the  proceeding  should  begin  de  novo,  and  new  arbi- 
trators be  appointed,  who  might  agree  upon  an  umpire;  and  that,  the 
court  having  once  at  the  former  sessions  exercised  its  authority  under 
the  statute  to  appoint  an  umpire,  it  had  no  jurisdiction  or  authority 
to  again  appoint  an  umpire  in  the  same  matter  at  a  subsequent  sessions 
without  the  requirements  of  the  statute  having  been  duly  complied 
with.  Notwithstanding  these  objections,  the  court,  after  hearing  the 
counsel  for  the  plaintiff,  who  dissented  from  the  view  of  the  facts 
taken  on  the  other  side,  appointed  the  said  Thomas  Johnson  to  be 
umpire  (whose  assent  had  been  then  obtained);  the  chairman  at  the 
same  time  saying  that  the  order  was  made  out  on  the  condition  of  the 
applicant,  namely  the  plaintiff,  taking  on  himself  the  responsibility 
of  its  validity.  The  appointment  was  entered  and  formally  made  out 
by  the  clerk  of  the  peace  in  the  words  following, — 

"  Staftbrdshire.  At  the  general  quarter  sessions  of  the  peace  of  our 
Lady  the  Queen,  holden  at  Staflford,  upon  Monday,  the  first  week 
after  the  11th  of  October,  to  wit,  the  14th  of  October,  in  the  twenty- 
fifth  year  of  the  reign,  of  our  Sovereign  Lady,  Victoria,  &o.,  and  in  the 
year  of  our  Lord  1861,  before,  Ac,  &o.,  and  others  their  fellows,  jus- 
tices of  our  Lady  the  Queen  assigned  to  keep  the  peace  in  the  county 
aforesaid,  and  also  to  hear  and  determine  divers  felonies,  trespasses,  and 
other  misdemeanors  committed  in  the  same  county. 

"  John  William  Phillips,  sheriflF. 
''  In  the  matter  of  the  claim  for  damages  by  Hans  '^'Bingland,  the 
♦181]  younger,  The  Local  Board  of  Health  of  Burslem,  and  the 
Public  Health  Act,  1848. 

'*  Upon  the  motion  of  Mr.  Mottram,  of  counsel  for  Hans  Ringland, 
the  younger,  upon  reading  the  affidavit  of  F.  C.  Lewis,  and  after 
hearing  Mr.  M'Mahon,  of  counsel  for  the  said  local  board  of  health  of 
Burslem.  It  is  ordered  that  Thomas  Johnson,  of  the  city  of  Lichfield, 
architect,  shall  be  and  he  is  hereby  appointed,  under  the  provisions  of 
the  said  Public  Health  Act,  1848,  umpire  to  determine  all  disputes 
between  the  said  Hans  Bingland,  the  younger,  and  the  local  Board  of 
Health  for  Burslem,  in  reference  to  the  amount  of  compensation  (if 
any)  to  be  paid  by  the  said  Hans  Bingland,  the  younger,  by  the  said 
Burslem  local  board  of  health  for  damage  done  by  the  sewerage 
operations  of  the  said  local  board  of  health  to  four  houses  belonging 
to  the  said  Hans  Bingland,  the  younger,  situate  in  Waterloo  Boad, 
Burslem,  in  the  said  county  of  Stafford. 

"  By  order  of  the  court, 
"R.  W.  HaxVD,  deputy  clerk  of  the  peace. 

9.  The  said  Thomas  Johnson  on  the  18th  of  November  appointed 
the  29th  of  November  the  next  for  entering  upon  arbitration ;  and, 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)        181 

upon  the  meeting  for  that  purpose,  the  counsel  for  the  Burslem  board 
of  health  objected  to  and  protested  against  Mr.  Johnson  acting  as 
umpire  and  proceeding  with  the  arbitration,  and  handed  him  a  written 
protest  setting  forth  the  following  grounds  of  objection  : — 

'*  First, — that  the  appointment  of  arbitrator  on  behalf  of  the  said 
Hans  Ringland,  the  younger,  was  notified  in  writing  to  the  board  on 
the  24th  of  December,  1860,  and  the  appointment  of  arbitrator  on 
behalf  of  the  board  was  made  on  the  2d  of  January,  1861,  and  notified 
to  the  said  Hans  Ringland,  the  younger,  ^on  the  4th  of  January,  r«-i  on 
1861 :  and  that  the  said  arbitrators  did  not  make  their  award,  '- 
or  extend  the  time  for  doing  so,  or  appoint  an  umpire  within  twenty* 
one  days  from  the  last-mentioned  day : 

"  Second, — that  no  award  was  made  within  three  months  from  the 
date  of  the  submission  or  notification  as  aforesaid,  or  of  the  appoint* 
ment  of  the  arbitrator  on  behalf  of  the  board,  and  the  notification 
thereof  to  the  said  Hans  Ringland : 

"  Third, — that  the  first  application  to  the  court  of  quarter  sessions 
for  the  appointment  of  an  umpire  was  not  made  within  three  months 
from  the  notification  of  the  appointment  of  the  said  last-mentioned 
arbitrator,  or  of  the  date  of  the  said  submission  or  first-mentioned 
appointment,  or  the  notification  thereof,  or  before  or  until  the  11th  of 
April  last,  and  that  the  application  was  refused : 

''Fourth, — that  the  next  application  for  the  appointment  of  an 
umpire  was  made  at  the  quarter  sessions  held  in  July  last,  when  an 
order  was  made  appointing  you  such  umpire ;  which  order  was  bad, 
for  the  reasons  before  mentioned,  and  under  which  you  did  not  make 
any  award  for  the  space  of  three  months  or  otherwise : 

•*  Fifth, — that,  as  the  last-mentioned  order  was  not  proceeded  with,  it 
was  not  competent  for  the  court  of  quarter  sessions  to  make  a  subse- 

Juent  order,  and  therefore  that  the  order  obtained  by  the  said  Hans 
England,  the  younger,  at  the  quarter  sessions  held  on  the  14th  of 
October  last,  and  which  you  are  now  proposing  to  act  upon,  is  bad 
and  void  in  law,  and  any  proceedings  taken  thereunaer  will  be 
Toid  and  of  no  effect:  and  we  shall  dispute  the  legality  of  such 
proceedings." 

10.  The  said  Thomas  Johnson  having  then  stated  that  he  had  not 
within  twenty-one  days  from  the  date  of  his  appointment  in  October 
extended  the  time  for  ^making  his  award,  or  done  anything  r«i  go 
whatever  under  his  appointment  before  the  said  18th  of  No-  ^ 
vember,  the  counsel  for  the  board  further  protested  on  this  ground 
also  against  his  proceeding  with  the  arbitration:  and  said  that,  if  he 
did  so,  the  board  would  take  steps  to  set  aside  the  proceedings,  and 
handed  in  a  second  written  protest,  in  the  words  following : — 

^'  Take  notice  that  the  Burslem  local  board  of  health  also  object  to 
your  acting  as  umpire  in  this  matter,  and  protest  against  your  pro- 
ceeding with  this  arbitration,  on  the  ground  that  you  did  not  make 
your  award  or  extend  the  time  for  making  your  award  under  the 
appointment  and  order  of  the  court  of  quarter  sessions  holden  in 
October  last,  in  manner  required  by  law ;  and  that  any  proceeding 
taken  by  you  will  be  void  and  of  no  effect." 

11.  The  said  Thomas  Johnson,  the  umpire,  thereunon  stated,  that, 
without  taking  upon  himself  to  determine  the  valiaity  of  the  pro- 


183  MNGLAND  v.  LOWNDES.    M.  T.  1863. 

ceedings,  he  thought  it  his  duty  to  proceed  with  the  reference.  The 
counsel  for  the  board  then  said,  that,  in  that  case,  he  would  attend 
under  protest :  and  he  thereupon  attended  under  protest ;  and,  at  the 
close  of  his  case,  said  he  should  rely  on  his  protests  for  setting  aside 
the  proceedings  as  unauthorized,  supposing  the  award  were  against 
him.  The  umpire  proceeded  with  the  arbitration;  and,  after  sitting 
two  entire  days,  and  examining  the  witnesses  on  both  sides,  and 
hearing  the  addresses  of  the  respective  counsel,  published  his  award, 
dated  the  30th  of  December,  1861,  to  the  following  effect : — 

"  I  do  hereby  find,  award,  and  adjudge  that  the  said  local  board  of 
health  of  Burslem  do,  on  or  before  the  16th  of  January  next,  pay  to 
the  said  Hans  Bingland,  the  younger,  the  sum  of  1352.  I65.  as  com- 
pensation for  the  damage  which  I  do  hereby  award*  hath  been  done 
*1R4.1  *^y  ^^®  ®^*^  local  board  of  health  by  their  said  sewerage 
-I  operations  to  the  said  four  houses  belonging  to  the  said  Hans 
Ringland,  the  younger,  situate  in  Waterloo  Boad,  Burslem,  in  the  said 
county  of  Stafford  :  And  I  do  hereby  further  award  and  adjudge  that 
the  said  local  board  of  health  of  Burslem  do  pay  to  the  said  Hans 
Ringland,  the  younger,  all  the  costs  of  and  consequent  upon  the  said 
reference  and  of  this  my  award." 

13.  On  the  12th  of  February,  1862,  the  two  several  appointments 
of  arbitrators,  or  submission  to  arbitration,  and  the  said  appointment 
of  umpire,  were  made  a  rule  of  this  court. 

14.  On  the  21st  of  February,  1862,  the  Burslem  local  board  of 
health  took  out  a  summons  to  oppose  the  taxation  of  costs  on  the 
award,  on  the  ground  that  they  should  have  been  ascertained  by  the 
umpire,  and  could  not  be  the  subject  of  taxation. by  an  officer  of  one 
of  the  superior  courts.  After  hearing  counsel,  Crompton,  J.,  refused 
to  make  the  order ;  and  the  costs  were  then  taxed  at  1642; 

15.  The  Burslem  local  board  of  health  still  refused  to  pay  the  said 
sum  186Z.  16s.  so  as  aforesaid  found  due  by  the  award,  and  the  said 
Bum  of  154Z.  costs :  and  *  this  action  was  then  brought  to  enforce  the 
award. 

The  questions  for  the  opinion  of  the  court  were — first,  whether  there 
was  any  appointment  of  an  umpire  at  the  Midsummer  sessions,  or 
whether  the  proceedings  at  those  sesaions  deprived  the  court  of  the 
power  to  make  a  valid  appointment  at  the  October  sessions, — secondly, 
whether,  though  the  umpire  did  not  within  twenty-one  days  after  his 
appointment  at  the  Michaelmas  sessions  extend  the  time  for  making 
his  award,  he  had  afterwards  authority  to  proceed  with  the  reference, 
— ^thirdly,  whether,  if  the  above  objections  or  any  of  them  to  his  pro- 
ceeding with  the  reference  were  valid,  there  was  any  such  waiver  of 
♦1851  *^^^^  *®  8*^®  ^^  restored  to  him  jurisdiction  to  proceed  with 
^  the  reference, — fourthly,  whether  the  plaintiff  is  entitled  to^a 
mandamus  to  make  a  rate,  as  prayed  in  the  declaration. 

Sayes,  Serjt.  (with  whom  was  Beatby),  for  the  plaintiff. — The  first 

Question  is,  whether  the  appointment  of  the  umpire  was  made  in  time, 
^here  is  nothing  in  the  statute  (11  &  12  Vict.  c.  63)  to  require  this 
to  be  done  at  the  next  sessions  after  the  parties  had  referred  the  matter 
and  the  arbitrators  neglected  or  refused  to  appoint  an  umpire.  The 
mode  of  referring  to  arbitration  under  this  act  is  regulated  by  the 
128d  and  three  following:  sections.    Section  128  enacts^  that,  '*  i 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        185 

of  dispute  as  to  the  amount  of  any  cornpensation  to  be  made  under 
the  provisions  of  this  act  (except  where  the  mode  of  determining  the 
same  is  specially  provided  for),  and  in  case  of  any  matter  which  by 
this  act  is  authorized  or  directed  to  be  settled  by  arbitration,  then, 
unless  both  parties  concur  in  the  appointment  of  a  single  arbitrator, 
each  party,  on  the  request  of  the  other,  shall  appoint  an  arbitrator,  to 
whom  the  matter  shall  be  referred;  and  every  such  appointment 
when  made  on  the  behalf  of  the  local  board  of  health  shall  (in  the 
case  of  a  non-corporate  district)  be  under  their  seal  and  the  hands  of 
any  five  or  more  of  their  number,  or  under  the  common  seal  in  case 
of  a  corporate  district,  and,  on  the  behalf  of  any  other  party,  under  his 
hand,  or,  if  such  party  be  a  corporation  aggregate,  under  the  common 
seal  thereof;  and  such  appointment  shall  be  delivered  to  the  arbitra- 
tors, and  shall  be  deemed  a  submission  to  arbitration  by  the  parties 
making  the  same;  and,  after  the  making  of  such  appointment,  the 
same  shall  not  be  revoked  without  the  consent  of  both  parties,  nor 
shall  the  death  of  either  party  operate  as  a  revocation :  and  if  for  the 
♦space  of  fourteen  days  after  any  such  matter  shall  have  arisen,  r*i  o/> 
and  notice  in  writing  by  one  party  who  has  himself  duly  ap-  '- 
pointed  an  arbitrator  to  the  other  party,  stating  the  matter  to  be  referred, 
and  accompanied  by  a  copy  of  such  appointment,  the  party  to  whom 
notice  is  given  fail  to  appoint  an  arbitrator,  the  arbitrator  appointed 
by  the  party  giving  the  notice  shall  be  deemed  to  be  appointed  by  and 
shall  act  on  behalf  of  both  parties :  and  the  award  of  any  arbitrator  or 
arbitrators  appointed  in  pursuance  of  this  act  shall  be  binding,  final, 
and  conclusive  upon  all  persons  and  to  all  intents  and  purposes  whatso- 
ever. Section  124  enacts,  that,  *'  if  before  the  determination  of  any 
matter  so  referred,  any  arbitrator  die  or  refuse  or  become  incapable 
to  act,  the  party  by  whom  such  arbitrator  was  appointed  may  appoint 
in  writing  another  person  in  his  stead  ;  and,  if  he  fail  so  to  do  for  the 
space  of  seven  days  after  notice  in  writing  from  the  other  party  in 
that  behalf,  the  remaining  arbitrator  may  proceed  ex  parte ;  and  every 
arbitrator  so  appointed  shall  have  the  same  powers  and  authorities  as 
were  vested  in  the  arbitrator  in  whose  stead  the  appointment  is  made ; 
and,  in  case  a  single  arbitrator  die,  or  become  incapable  to  act,  before 
the  making  of  his  award,  or  fail  to  make  his  award  within  twenty- 
one  days  after  his  appoiniment,  or  within  such  extended  time,  if  any,  as 
skaU  have  been  duly  appointed  by  him  for  that  purpose,  the  matters 
referred  to  him  shall  be  again  referred  to  arbitration  under  the  pro- 
visions of  this  act,  as  if  no  former  reference  had  been  made."  The 
125th  section  enacts^  *'  that,  in  case  there  be  more  than  one  arbitrator, 
the  arbitrators  shall,  before  they  enter  upon  the  reference,  appoint  by 
writing  under  their  hands  an  umpire,  and,  if  the  person  appointed  to 
be  umpire,  die,  or  become  incapable  to  act,  the  arbitrators  shall  forth- 
with appoint  another  person  in  his  stead ;  and;  in  case  *the  arbi-  r^-tgn 
tratora  neglect  or  refuse  to  appoint  an  umpire  for  seven  days  ^ 
afier  being  requested  so  to  do  by  any  party  to  the  arbitration^  the  court  of 
general  or  quarter  sessions  shall,  on  the  application  of  such  party, 
appoint  an  umpire ;  and  the  award  of  the  umpire  shall  be  binding, 
final,  and  conclusive  upon  all  persons  and  to  all  intents  and  purposes 
whatsoever ;  and,  in  case  the  arbitrators  fiul  to  make  their  award 
within  twenty-one  days  after  the  day  on  which  the  last  of  them  was 


18T  RINGLAND  v.  LOWNDES.    M.  T.  1863. 

appointed,  or  within  such  extended  time,  if  any,  as  shall  have  been 
duly  appointed  by  them  for  that  purpose,  the  matters  referred  shall 
be  determined  by  the  umpire;  and  the  provisions  of  this  act  with 
respect  to  the  time  for  making  an  award,  and  with  respect  to  extend- 
ing to  (a)  the  same  in  the  case  of  a  single  arbitrator,  shall  apply  to  an 
umpirage."  And  the  126th  section  provides  **that  the  time  for 
making  an  award  under  this  act  shall  not  be  extended  beyond  the 
period  of  three  months  from  the  date  of  the  submission  or  from  the  day  on 
which  the  umpire  shall  have  been  appointed,  as  the  case  may  be."  The 
first  application  to  the  sessions,  which  was  made  at  Easter,  1861, 
failed  for  want  of  the  seven  days*  notice ;  the  second,  which  was  made 
at  Midsummer,  was  rendered  abortive  for  want  of  the  consent  of  the 
umpire.  The  appointment  made  at  the  Michaelmas  sessions,  there- 
fore, was  clearly  in  time.  The  next  objection  is  one  of  the  merest 
form :  it  is  that  the  umpire  allowed  twenty-one  days  to  elapse  before 
he  proceeded  with  the  reference,  and  omitted  to  enlarge  the  time. 
Now,  the  enlargement  of  the  time  for  making  an  award  is  a  voluntary- 
act  of  the  arbitrator  or  umpire ;  it  needs  no  consent  nor  any  particular 
form, — Russell  on  Awards,  2d  edit.  p.  142 ;  and  it  need  not  even  be 
*1881   ^^  writing,  unless  writing  be  required  *by  the  submission:  and 

-'  here  the  statute  does  not  require  it.  At  all  events,  if  this  be  a 
valid  objection,  it  was  waived,  as  any  mere  irregularity  may  be,  by 
the  appearance  of  the  board  before  the  arbitrator,  and  taking  the 
chance  of  a  decision  in  their  favour:  Russell,  p.  195.  Their  con- 
tinued attendance  before  the  umpire,  and  calling  witnesses,  materially 
enhanced  the  expense  of  the  proceedings.  Appearing  to  defend, 
operates  a  waiver  of  the  want  of  a  notice  of  trial.  [Byles,  J. — In 
Holt  V,  Meddowcroft,  4  M.  &  Selw.  467,  the  plaintifif  had  obtained  a 
rule  for  a  special  jury,  which  was  regularly  struck,  but  a  common  jury 
panel  was  returned  together  with  the  special  jury  panel,  and  at  the 
trial,  none  of  the  special  jury  attending,  it  was  proposed  on  the  part 
of  the  plaintiff  to  try  the  cause  by  a  common  jury;  to  which  the 
defendant's  counsel  objected  that  this  could  not  regularly  be  done ; 
but  the  judge,  finding  a  common  jury  panel  annexed,  was  of  opinion 
that  he  ought  to  try  the  cause,  and  accordingly  the  cause  was  tried, 
and  there  was  a  verdict  for  the  plaintiff, — the  defendant's  counsel  appear^ 
ing  and  making  defence.  On  a  rule  for  a  new  trial,  it  was  contended 
for  the  plaintiff  that  the  objection  was  waived  by  the  defendant's 
appearance.  But  Lord  EUenborough  said :  "  Wbat  might  have  been 
the  effect  of  the  defendant's  appearing  at  the  trial  and  making  a 
defence  without  any  protest  against  trying  the  issue,  it  is  unnecessary 
at  present  to  inquire,  becaase  we  find  that  the  defendant  did  protest 
and  did  all  in  his  power  to  resist  the  proceeding.  I  cannot  agree  that 
it  amounts  to  a  coAsent  on  the  part  of  the  defendant,  because,  being, 
as  it  were,  tied  to  the  stake,  and  dragged  on  to  trial,  he  endeavours  to 
make  the  best  of  it."  Keating,  J.,  referred  to  In  re  Hick,  8  Taunt. 
694  (E.  C.  L.  R.  vol.  4).  There,  by  the  terms  of  a  reference  to  arbi* 
tration,  the  two  arbitrators  were  to  appoint  an  umpire  before  entering 
*1891  ^^^^  *con8ideration  of  the  matters  in  difference,  and  to  make 

^  their  award  before  a  certain  day  or  such  time  as  they  or  any 

(a)  Thif  Uander  oeoiin  in  all  the  •ditions  ef  the  itfttatet. 


C03IM0N  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        189 

two  of  them  sbould  appoint.  The  arbitrators,  htfort  appointing  an 
umpire,  enlarged  the  time,  and  afterwards  held  a  meeting,  at  which 
the  parties  attended  :  and  it  was  held,  that  the  parties,  being  aware  of 
these  facts,  and  having  afterwards  attended,  could  not  now  make  any 
objection  on  the  ground  of  the  enlargement  of  the  time  having  been 
made  before  the  appointment  of  the  umpire.]  In  Tyerman  v.  Smith, 
6  Ellis  &  B.  719  (E.  C.  L.  R.  vol.  88),  on  a  compulsory  reference  under 
the  Common  Law  Procedure  Act,  1854,  it  was  held  to  be  no  objection 
to  entering  up  judgment  on  the  award  under  s.  3,  that  the  award  was 
made  more  than  three  months  after  the  arbitrator  entered  on  the 
reference,  though  the  order  of  reference  named  no  time,  and  no  written 
consent  for  enlarging  the  time  had  been  given  by  the  parties, — it 
appearing  that  the  parties  had,  within  a  month  before  the  making  of 
the  award,  acted  upon  the  reference  as  still  subsisting ;  sjich  acting 
estopping  them  from  saying  that  the  circumstances  necessary  to  give 
jurisdiction  to  the  arbitrator  did  not  exist.  Coleridge,  J.,  there  said  : 
"The  analogy  between  this  case  and  Andrews  v.  Elliott.  5  Ellis  &  B. 
502  (E.  C.  L.  R.  vol.  85),  6  Ellis  &  B.  838  (E.  C.  L.  R.  vol.  88),  is 
complete.  Mr.  Bramwell  was  a  judge  under  the  nisi  prius  commission, 
and  could  have  tried  the  case  with  a  jury;  and  the  statute  [17  &  18 
Vict.  c.  125,  s.  1],  under  certain  limited  conditions,  gave  him  power 
to  try  by  himself, — ^a  power  derived,  not  from  his  general  authority, 
but  from  the  statute.  We  and  the  Court  of  Exchequer  Chamber 
thought  that  the  plaintiff,  by  his  consent,  was  estopped  from  denying 
that  the  statutable  conditions  had  been  fulfilled.  So,  here,  the  master 
had  the  power  to  take  a  compulsory  reference ;  but  he  could  make  his 
award  only  within  the  three  months,  unless  there  were  a  written  con- 
sent for  the  •enlargement  of  the  time.  Now,  the  plaintiff's  r*i  qq, 
conduct  has  been  such  as  to  estop  him  from  contending  that  '- 
there  was  no  written  consent."  And  Erie  J.,  concurred.  [Byles,  J. — 
Was  there  any  protest  there  ?]  There  was  not.  [Bylbs,  J. — What 
is  the  effect  of  a  protest?]  In  the  matter  of  Palmer  and  The  Metro- 
politan Railway  Company,  31  Law  J.,  Q.  B.  259,  where  a  similar 
(question  arose  upon  tne  23d  section  of  the  Lands  Clauses  Consolida* 
tion  Act,  8  &  9  Vict.  c.  18,  Mellor,  J.,  after  time  taken  to  consider, 
said:  "  There  is  evidence,  I  think,  that  the  applicant  intended  to  take 
advantage  of  the  award  if  in  his  favour,  ana  object  if  it  was  against 
him-  I  think  the  applicant  is  estopped  by  his  own  conduct  from> 
taking  advantage  of  the  objection  to  the  want  of  authority  in  the 
umpire ;  pr,  if  it  be  not  an  estoppel,  there  is,  1  think,  a  new  parol 
contract  to  go  on  with  the  arbitration  upon  the  terms  of  the  statutory 

Eowers."(a)  In  Holdsworth  v.  Wilson,  8  Law  Times  (N.  S.)  484,  it  was- 
eld  by  the  Exchequer  Chamber  (affirming  the  judgment  of  the 
Court  of  Queen's  Bench),  that,  under  the  Public  Health  Act,  arbitral 
tors  may  appoint  an  umpire  after  the  twenty -one  days  limited  by  s. 
126  for  making  their  award  have  expired  without  their  having 
enlarged  the  time,  provided  such  appointment  be  within  thh  time 
limited  by  s.  126  for  making  the  umpirage. 

(a)  In  Lawrenoe  v.  Hodf^ion,  1  Y.  A  J.  10,  it  wm  held,  that  aa  objeoiion  that  tbe  ttea  fee 
■aking  an  avard  haa  not  b«en  dnlj  enlarged,  is  waived  by  proceeding  in  the  reforenee  with  ^ 
knowledge  of  that  faot 

C.  B.  H.  8.,  VOL.  XV.— 9 


190  RINGLAND  v,  LOWNDES.    M.  T.  1863. 

*1 911  ^^^^f  Q-  C.  (with  whom  was  iTMafwn),  contri.(a) — *This  award 
J  has  not  been  made  within  the  time  prescribed  by  the  statute ;  and 
no  act  has  been  done  by  the  board,  or  by  those  who  represented  them, 
-which  can  give  it  any  validity.  The  umpire  having  been  appointed 
trader  s.  125,  was  bound  under  s.  124  to  make  his  award  '*  within  twenty- 
one  days  after  his  appointment,"  or  within  the  extended  time  which 
he  had  given  himself  by  a  due  enlargement.  Admitting  that  parties 
may  consent  to  an  extension  of  the  twenty-one  days,  thoughthere  has 
been  no  enlargement,  yet,  where  they  have  not  consented,  but  on  the 
contrary  have  expressly  dissented,  an  award  made  without  that  for- 
mality is  a  nullity.  When  they  attended  before  the  umpire  on  the 
29th  of  November,  the  board  did  not  know  whether  the  time  had 
been  enlarged  or  not.  The  moment  they  did  learn  the  fact,  they  did 
all  they  could  to  express  their  dissent.  Can  their  formal  and  reiterated 
*1991  P^^^®^*  ^®  treated  as  nothing?  Not  a  single  *case  has  been  or 
J  can  be  cited  where  it  has  been  held  that  a  party  who  attends 
lander  protest  is  bound  by  the  proceedings.  [Keating,  J. — Would 
there  have  been  a  consent  to  the  umpire's  making  an  award  in  favour 
of  the  board  ?]  No.  The  statement  made  by  counsel  at  the  close  of 
the  proceedings  clearly  does  not  amount  to  a  consent.  Tyreman  v. 
Smith  was  a  case  under  the  Common  Law  Procedure  Act.  The 
defendant  attended  without  objection,  and,  after  the  award  was  made, 
he  applied  to  have  it  set  aside  on  another  ground.  There  was  a 
perfect  consent  to  the  jurisdiction  throughout.  In  Palmer  and  The 
Metropolitan  Eailway  Company,  there  was  no  protest,  no  intimation 
was  given  by  the  parties  of  their  intention  to  avail  themselves  of  the 
objection :  that,  therefore,  was  a  case  of  express  consent  to  the  juris- 
diction. And  all  that  Holdsworth  v.  Wilson  decides,  is,  that  although 
the  twenty-one  days  have  elapsed,  the  arbitrators  have  still  enough 
power  left  in  them  to  appoint  an  umpire.  It  is  submitted  that  the 
4oard  did  not  waive  their  protest  by  attending  before  the  umpire 
to  protect  their  interests,  and  calling  witnesses.  The  case  of  Holt  v. 
Meddowcroft,  4  M.  &  Selw.  468,  was  followed  by  this  court  in  Lycett 
V.  Tenant,  4  N.  C.  168,  5  Scott  479,  6  Dowl.  P.  C.  436,  where  Tindal, 
C.  J.,  said :  "  It  would  be  a  most  dangerous  precedent  if  we  were  to 
hold  that  a  defendant,  who,  dragged  to  the  stake,  and  protesting 
against  the  regularity  of  the  proceeding,  answers  the  attack  of  his 
opponent's  counsel,  is  to  be  deemed  thereby  to  have  waived  his 

(a)  The  points  marked  for  argument  on  the  part  of  the  defendants  were  as  foHows  :— 

"  I.  That  the  proceedings  at  the  Midsammer  sessions  amounted  to  a  ralid  apf^otntment  of 
vinpire,  and  that  conse^aentlj  the  coart  of  quarter  sessions  could  not,  unless  the  parties  hid 
hegun  de  noTo,  make  another  appointment  at  the  October  sessions  : 

<*  2.  That  the  umpire*  not  having  made  his  award,  or  extended  the  time  for  making  it,  within 
twenty-one  days  from  the  dAte  of  his  appointment,  had  no  jurisdiction  afterwards  to  proceed 
with  the  reference : 

•  •'  3.  That,  the  appointment  of  umpire  haring  been  made  eompulaorily  under  the  statute, 
against  the  wishes  of  the  local  board,  there  never  was  in  fact  any  oons ent  to  or  waiver  of  the 
objections  to  his  proceeding  with  the  reference : 

"  4.  That,  the  umpire  having  allowed  the  time  for  exercising  his  jurisdiction  to  expire,  no 
eoBsent  or  waiver  could  afterwards  give  or  restore  to  him  jurisdiction : 

"  6.  That  a  mandamus  omnnot  be  granted  as  prayed,  because  there  i«  no  raggestlon  that  tfa« 
ordinary  remedies  are  not  suffleient,  and  also  because  the  compensation  claimed  for  fhe  alleged 
Injury  to  the  plaintilTs  houses  in  1856,  and  the  costs  fixed  by  taxation  in  iB'ebruary,  1862,  are 
not,  nor  is  either  of  them,  a  eharge  or  expense  incurred  within  six  months  of  the  making  of 
^e^rpposed  rate,  pursuant  to  the  Public  Health  Act,  1848,  11  A  12  Viet.  c.  88,  s.  89." 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        192 

objection  to  the  trial."  In  Da  vies  i;.  Price,  6  Law  T.  (N.  S.)  713,  where 
it  was  held,  that  an  objection  that  arbitrators  were  exceeding  their 
authority  in  awarding  damages,  was  not  waived  by  the  defendant's 
attending  under  protest  and  cross-examining  when  the  question  of 
damages  was  gone  into,  Crompton,  J.,  in  delivering  the  judgment  of 
the  court,  says :  "  We  *are  disposed  to  think,  that,  as  the  arbi-  r#i  no 
trators  persisted  in  going  into  the  consideration  of  damages  '■ 
after  objection  taken  by  the  defendant,  he  did  not  waive  his  objection 
by  attending  subsequent  meetings  under  protest,  no  case  having  been 
brought  to  our  notice  in  which  a  substantial  objection  has  been  held 
to  be  waived  by  subsequent  attendance  before  the  arbitrator  under 
protest."  In  the  case  of  Re  Haigh's  Estate,  81  Law  J.,  Chanc.  420, 
the  Court  of  Chancery  referred  to  arbitration  certain  matters  in 
dispute  between  the  parties  to  the  suit  of  Haigh  v,  Haigb,  and  also 
between  the  same  parties  as  to  the  estate  of  H.,  the  testator  in  the 
cause :  those  disputes  related  to  certain  collieries,  their  management, 
and  the  dealings  with  them  for  several  years.  One  of  the  parties  had 
a  son,  who  was  well  acquainted  with  the  mining  accounts,  and  had 
assisted  his  father  in  the  business,  and  this  party  applied  to  the  arbi- 
trator to  allow  his  son  to  be  present ;  but  that  officer  refused  to  permit 
him  to  be  present,  on  the  ground  of  his  behaviour  in  the  matter.  A 
short-hand  writer,  whose  presence  the  same  party  wished,  to  take 
notes  at  the  meetings,  was  also  excluded.  Upon  a  motion  to  set  aside 
the  award,  it  was  held,  that,  without  going  into  the  question  whether 
the  award  did  or  did  not  do  substantial  justice  between  the  parties,  it' 
must  be  set  aside,  the  exclusion  by  the  arbitrator  of  the  son  and  the 
short-hand  writer  having  been  made  without  adequate  ground,  and  the 
acquiescence  of  the  party  complaining  in  the  proceedings  under  the 
reference  after  their  exclusion  not  being  such  as  to  deprive  him  of  his 
right  to  have  the  award  set  aside. 

The  award  was  clearly  bad,  not  having  been  made  within  three 
months  after  the  appointment  of  the  umpire,  as  required  bv  s.  126. 
Tie  appointment  took  place  on  the  8d  of  July,  at  the  Midsummer 
sessions,  and  the  award  was  not  made  until  the  20th  of  December. 
♦The  party  was  bound  to  go  to  the  next  sessions,  viz.  the  Easter  pj^g^ 
sessions,  and  could  not  by  his  blunder  give  himself  an  increased 
period.  [Bylbs,  J.— Where  the  legislature  intend  that  a  thing  shall 
be  done  at  the  next  sessions,  it  is  usually  so  expressed.]  Unless  it  is 
held  that  the  application  must  be  made  to  the  next  sessions,  there  is  . 
practically  no  limit  at  all.  [Byles,  J.— It  must  be  done  within  a 
reasonable  time.]  And  that  must  at  all  events  have  reference  to  the 
period  limited  by  the  statute  for  the  making  of  the  award.  There  is 
nothing  to  require  the  appointment  of  the  umpire  by  the  sessions  to 
be  in  writing.  The  case  states  that ''  Mr.  Thomas  Johnson  was  fixed 
upon  by  the  court  as  such  umpire."  What  was  that  but  an  appoint- 
ment? Whose  duty  was  it  to  obtain  Mr.  Johnson's  assent?  It  has 
heen  held  that  an  appointment  of  a  clerk  of  the  peace  by  parol  is  . 
valid.  [Bylks,  J.— He  is  not  appointed  by  the  sessions.]  Ko:  by 
the  loid  lieutenant:  but  it  is  done  in  sessions. 

Assuming  the  objections  to  be  untenable,  a  mandamus  under  the  68tli  ^ 
and  subsequent  seeiions  of  the  Common  Law  Procedure  Act,  1854, 
can  only  be  granted  on  the  same  grounds  as  the  prerogative  writ  of 


194  RINGLAND  v.  LOWNDES.    M.  T.  1863. 

mandamus  by  the  Court  of  Queen's  Bench.  It  will  not  be  granted 
where  there  is  another  remedy  ;  and  the  granting  or  withholding  it  ia 
discretionary  with  the  court.  Besides,  here,  the  plaintiff  comes  toa 
kte:  Burland  v.  The  Local  Board  of  Health  of  Kingston-upon-HuU, 
82  Law  J.,  Q.  B.  17.  The  damage  was  done  in  1856;  the  demand  for 
compensation  was  made  in  1858 ;  and,  after  haying  obtained  a  rule 
for  a  mandamus,  the  plaintiff  appointed  his  arbitrator  on  the  17th  of 
December,  1860:  and  this  action  was  not  commenced  until  the  16th 
of  May,  1862.  Now,  the  89th  section  of  the  Public  Health  Act  only 
authorizes  the  local  board  to  make  and  levy  rates  "  prospectively,  in 
♦1951  ^^^®^  ^^  ^*^^®  money  for  the  payment  *of  future  charges  and 
-'  expenses,  or  retrospectively,  in  order  to  raise  money  for  the 
payment  of  charges  and  expenses  which  may  have  been  incurred  at 
any  time  within  six  months  before  the  making  of  the  rate,^^  [Byles,  J. 
— ^The  amount  was  not  ascertained  here  until  the  miaking  of  the  award. 
It  was  impossible  to  know  beforehand  what  the  award  would  be.l 
If  a  mandamus  be  directed  to  issue  here,  the  board  would  be  bound 
to  make  and  levy  a  rate,  even  though  they  might  have  funds  enough 
in  hand  to  satisfy  the  plaintiff's  claim;  for,  nothing  but  absolute 
obedience  can  be  returnea  to  the  writ. 

HayeSy  Serjt.,  in  reply,  was  desired  to  confine  himself  to  the  objec- 
tion that  the  umpire  had  omitted  to  enlarge  the  time  for  making  his 
award  within  the  twenty-one  days,  to  the  question  of  waiver,  and  to 
the  right  to  a  mandamus.  The  enlargement  not  being  necessarily  in 
writing  or  made  in  any  formal  manner,  it  was  enough  if  it  was  made 
by  parol  at  any  time  within  three  months  after  the  appointment  of  the 
umpire;  consequently,  by  giving  an  appointment  on  the  13th  of 
November  for  the  parties  to  come  before  him  on  the  29th  for  the 
purpose  of  entering  upon  the  umpirage,  the  umpire  sufficiently  com- 
plied with  the  requirements  of  the  statute.-  There  was,  therefore,  a 
sustantial  enlargement  within  the  three  months-  Then,  the  conduct 
of  the  board  was  altogether  inconsistent  with  their  protest,  and  clearly 
a  waiver  of  the  objection  as  to  time.  Davies  v.  Price,  6  Law  T.  (N. 
S.)  713,  w«s  a  case  of  excess  of  jurisdiction.  An  award  may  always 
be  set  aside  where  the  arbitrator  has  exceeded  his  jurisdiction;  and 
an  objection  on  that  ground  is  not  waived  by  attendance  before  him. 
This  is  in  the  nature  of  an  irregularity,  which  may  always  be  waived. 
*1961  ^^^  l^oard  had  no  right  to  attend  and  so  *put  the  plaintiff  to 
expense,  and  lake  their  chance  of  catting  aown  the  claim,  and 
then,  finding  the  award  adverse,  rely  upon  their  protest.  As  to  the 
mandamus,  the  case  clearly  falls  within  the  provisions  of  t&e  Comnxn 
Law  Procedure  Act,  and  tKe  plaintiff  has  been  guilty  of  no  laches 
which  ought  to  deprive  him  of  that  remedy. 

Byles,  J.(a)--I  am  of  opiniom  that  our  judgment  it  this  oas^  musk 
be  for  the  plaintiff.  The  first  objection  to  which  oar  atteodion  has  bem^ 
invited, — ^but  which  was  not  very  strongly  pressed  by  Mr.  Ln^ — • 
was,  that  an  order  was  made  at  the  Midsummer  seaiions.  1^  tha  wordl 
^' order'*  is  to  be  understood  in  the  sense  of  $  formal  ordev  of  thq  coort^ 
or  even  a  memorandum  or  ratry  in  tho  book  c^  tbe  elerk  of  ths 
pe^oe^  there  waa  na  snob  thing.  If  it  k  to  be  i^nalood  i«  the  aenaa 
of  li  anbotwtiiJ  f^poinlntcuDl^  Aier^  weiB  iwme^  booa^M  the  party  Bomi«^ 


COMMON  BENCH  HEPORTS.    (15  J.  SCOTT.    N.  S.)        IW 

nated  had  not  intimated  his  acceptance  of  the  appointment  of  umpire 
until  the  next  sessions.  Supposing  an  order  could  have  been  drawn 
up  at  the  Midsummer  sessions,  what  would  it  have  stated?  Simply 
that  Mr.  Johnson  was  named  umpire,  subject  to  his  acceptance  of  the 
appointment,  and  that  he  had  not  intimated  his  acceptance.  Clearly, 
therefore,  there  was  no  appointment  of  an  umpire  at  the  Midsummer 
sessions.  Then,  the  Public  Health  Act  not  having  limited  the  appli- 
cation to  the  next  sessions,  as  in  the  case  of  appeals  against  rates, 
orders  of  removal,  and  the  like,  it  seems  to  me  that  the  party  is  at 
liberty  to  go  to  any  sessions,  provided  that  is  done  within  a  reasonable 
time.  Accordingly  they  come  at  the  next  sessions  but  one,  viz.  the 
Michaelmas  sessions,  and  then  Mr.  Johnson  is  *formally  ap-  pigj 
pointed  umpire,  and  agrees  to  act.  Unfortunately,  however,  *- 
the  sessions  at  which  this  appointment  took  place  were  held  on  the 
14tli  of  October,  and  the  parties  did  not  go  before  the  umpire  until 
the  29th  of  November,  more  than  twenty-one  days  from  the  date  of 
the  appointment,  and  there  does  not  appear  to  have  been  any  enlarge- 
ment. I  agree  with  Mr.  Lush  that  this  was  an  objection  to  the 
umpire's  proceeding.  But,  what  sort  of  an  objection?  Not  that  the 
umpire  had  no  jurisdiction  over  the  subject-matter,  or  that  he  was  an 
improper  person,  but  that  he  had  not  gone  through  the  formal  act  of 
^ying.  *'  I  enlarge  the  time  for  making  my  award," — which  need  not 
be  in  writing  or  said  in  the  presence  of  anybody,  but  may  be  said  by 
the  umpire  in  the  privacy  of  his  own  chamber,  and  whether  he  be 
asleep  or  awake.  But,  assuming  that  to  have  been  a  serious  and 
fatal  objection,  if  duly  insisted  upon,  what  has  been  the  conduct  of 
the  board  ?  Being  informed  by  the  umpire  that  he  had  not  within 
twenty -one  days  from  the  date  of  his  appointment  in  October  extended 
the  time  for  making  his  award,  they  by  their  counsel  protest  against 
his  proceeding,  but  say  that  they  will  nevertheless  attend,  and,  if  the 
award  should  ultimately  be  against  them,  would  apply  to  set  asid# 
the  proceedings  as  unauthorized.  Accordingly  they  appear,  and  cross^ 
examine  the  plaintiff's  witnesses,  address  the  umpire,  and  call  wit^ 
nesses  on  their  own  behalf,  and  then,  the  award  being  against  them, 
insist  that  they  are  not  bound  by  it,  because  they  appeared  and  did 
all  this  under  protest.  Gases  have  been  cited  in  which  it  has  beeft 
held,  that,  where  there  has  been  a  total  absence  of  jurisdiction,  thd 
appearance  of  the  party  under  protest  before  the  tribunal  does  not 

i>reclude  him  from  afterwards  availing  himself  of  the  objection.  The 
eading  case  upon  the  subject,  which  has  been  brought  forward  upon 
all  occasions  *as  long  as  I  can  remember,  is.  Holt  v.  Meddow-  r»i  go 
croft,  4  M.  &  Selw.  467.  But,  what  was  the  nature  of  the  ^ 
objection  there?  A  proper  special  jury  had  been  struck,  but  a 
common  jury  panel  was  returned  together  with  the  special  jury  panel, 
and  at  the  trial,  none  of  the  special  jury  appearing,  it  was  proposed 
on  the  part  of  the  plaintiff  to  try  the  case  by  a  oommon  jury.  The 
defendant's  counsel  objected,  and  protested  against  the  cause  beinA 
tried, — the  statute  relating  to  the  nomination  and  striking  of  special 
juries,  3  G.  2,  c.  25,  s.  15,  expressly  saying  that  "the  jury  so  struck 
shall  be  the  jury  to  try  the  cause ;"  but  the  trial  was  proceeded  witk 
notwithstanding,  the  defendant's  counsel  appearing  and  making 
defence.    And^  when  this  fact  was  urged  as  an  answer  to  a  motioia 


198  RINOLAND  B.  LOWNDES.    M.  T.  1863. 

for  a  new  trial,  Lord  EUenborough  said  that  he  could  not  agree  that 
it  amounted  to  a  consent  on  the  part  of  the  defendant,  because,  being, 
as  it  were,  tied  to  the  stsike  and  dragged  on  to  trial,  he  endeavoured 
to  make  the  best  of  it.  The  distinction  between  that  case  and  the 
present  is  this, — that,  there,  the  parties  were  before  the  wrong  tribu- 
nal, and  here  before  the  right  tribunal ;  there  the  objection  was  a 
substantial  one,  and  here  only  a  shadowy  and  unsubstantial  one. 
Lycett  V.  Tenant,  i  N.  0. 168,  5  Scott  479,  6  Dowl.  P.  C.  436,  was 
also  cited.  In  that  case  there  was  a  variance  between  the  writ  of 
trial  and  the  issue :  the  objection  was  not  to  the  jurisdiction  of  the 
judge  to  try  the  cause,  but  that  the  plaintiff  had  brought  down  the 
wrong  issue  to  be  tried.  That,  again,  was  a  substantial  and  fatal 
objection ;  and,  although  the  defendant  appeared,  yet,  inasmuch  as  he 
did  so  under  protest,  he  was  allowed  afterwards  to  contest  the  validity 
of  the  proceedings.  Then,  as  to  Davies  v.  Price,  6  Law  T.  (N.  S.) 
713,  Crompton,  J.,  in  delivering  the  judgment  of  the  court,  certainly 
*1991  ^^^^  ®^y  ^       *^®7  ^®^®  disposed  to  think,  that,  as  the  *arbi- 

J  trators  persisted  in  going  into  the  consideration  of  damages 
after  objection  taken  by  the  defendant,  he  did  not  waive  his  objection 
by  attending  subsequent  meetings  under  protest.  Every  word  that 
falls  from  that  very  learned  judge  is  entitled  to  the  most  respectful 
attention.  But,  what  was  the  objection  there  ?  The  arbitrator  had 
persisted  in  taking  into  consideration  the  question  of  damages,  and 
thus  assumed  a  power  which  the  submission  did  not  give  him.  That 
again,  therefore,  was  a  substantial  objection.  In  the  case  of  Re  Haigh's 
Estate,  81  Law  J.,  Chanc.  420, — which  was  a  decision  of  the  Lords 
Justices, — the  arbitrator  had  without  sufficient  cause  excluded  from 
the  room  the  son  of  one  of  the  parties,  and  the  short-hand  writer ;  and 
the  party  affected  by  this  exclusion  had  nevertheless  proceeded  with 
the  reference, — whether  with  or  without  protest,  does  not  very  clearly 
appear.  There  the  arbitrator  had  misconducted  himself,  and  conse- 
quently there  is  no  analogy  between  that  case  and  the  present.  I  am 
of  opinion  that  an  objection  such  as  this, — which,  after  all,  amounts 
to  nothing  more  than  the  mere  omission  to  pronounce  some  formal 
words, — is  plainly  waived  by  conduct  like  that  here  pursued.  I  think 
we  should  be  going  against  the  weight  of  authority  as  well  as  against 
reason  and  common  sense,  if  we  were  to  send  the  parties  back  to  a 
fresh  arbitration  on  this  ground, — more  especially  in  a  case  where 
the  board  seem  to  have  been  throwing  every  possible  diflBculty  in  the 
way  of  the  claimant's  obtaining  compensation  for  the  damage  he  has 
sustained.  I  make  this  observation  rather  with  reference  to  the  next 
point  which  we  have  to  consider,  viz.  as  to  the  mandamus. 

Now,  the  granting  or  withholding  of  a  mandamus  under  the  Com- 
mon Law  Procedure  Act,  is  to  a  certain  extent  in  our  discretion :  and 
•2001  ^^®  difficulty  which  has  *occurred  to  me,  is,  that  the  delay 

-*  which  took  place  between  the  year  1856,  when  the  damage  was 
done  to  the  plaintiff's  premises,  and  the  year  1858,  when  his  claim  for 
compensation  was  first  brought  forward,  has  not  been  very  ^tisfacto- 
rily  accounted  for.  In  construing  the  89th  section  of  the  Public 
Health  Act,  which  limits  the  power  of  the  board  to  make  rates  retro- 
spectively to  the  raising  of  money  for  the  payment  of  charges  and 
expenses  which  may  have  been  incurred  within  six  months^  the  word 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        20D 

"  incurred"  must,  I  think,  be  read  with  reference  to  the  ultimate  ascer- 
tainment  of  the  amount  by  arbitration  or  otherwise;  for,  it  would  be 
impossible  to  make  even  an  approximate  rate,  which  would,  I  presume, 
include  the  costs  of  the  proceedings,  until  it  was  known  what  the 
decision  was.     There  is,  therefore,  no  objection  to  the  lapse  of  time 
since  1858.     And,  although  the  delay  between  1856  and  1858  is  not 
so  satisfactorily  accounted  for,  yet,  when  we  see  what  the  conduct  of 
the  defendants  has  been  in  that  part  of  the  case  which  is  fully  before 
the  court,  I  cannot  help  thinking,  that,  if  anything  could  have  been  said 
as  to  that  interval  which  would  have  assisted  them,  it  would  not  have 
been  withheld.  As,  therefore,  we  decide  on  all  the  other  points  in  favour 
of  the  plaintiff,  I  think  we  are  bound  to  give  him  tue  full  remedy 
which  the  law  allows,  by  directing  that  a  writ  of  mandamus  do  issuer 
Keating,  J. — I  entirely  agree  with  the  judgment  pronounced  by 
my  Brother  Byles,  and  in  the  reasons  which  he  has  given.     The  dis- 
tinction which  he  has  pointed  out  between  the  cases  relied  upon  and 
this  case,  seems  to  me  to  be  the  valid  distinction  upon  the  only  ques- 
tion which  might  have  presented  some  difficulty,  viz.  as  to  how  far  the 
attendance  of  the  parties  before  the  umpire  operated  a  waiver  of  the 
objection  *(which  I  think  was  a  valid  one)  that  the  umpire  had  r^oni 
omitted  to  enlarge  the  time  for  making  his  award  within  the  ^ 
twenty-one  days  prescribed  for  that  purpose  by  the  statute.    That 
distinction  runs  through  all  the  cases,  and  will  be  found  on  examina- 
tion to  reconcile  them  all.     Wherever  it  has  been  held  that  the  con- 
tinued attendance  before  the  arbitrator  waived  an  objection  of  which 
the  party  was  cognisant,  it  will  be  found  that  the  objection  was  to  the 
competency  of  the  tribunal ;  and  that  is  an  objection  which  cannot  be 
80  waived.    None  of  the  cases,  however,  as  to  arbitrations,  struck  me 
with  much  force  except  that  of  Davies  v.  Price,  6  Law  Times  (N.  S.) 
713.    But  that  case,  when  carefully  looked  at,  will  be  found  rather  to 
be  an  authority  in  favour  of  our  present  decision.     Orompton,  J.,  says 
that  the  court  are  disposed  to  think,  that,  as  the  arbitrators  persisted 
in  going  into  the  consideration  of  the  damages  after  objection  taken 
by  the  defendant,  he  did  not  waive  his  objection  by  attending  subse- 
quent meetings  under  protest, — no  case  having  been  brought  to  their 
notice  in  which  a  substantial  objection  had  been  held  to  be  waived  by 
subsequent  attendance  before  the  arbitrator  under  protest.     The  ob- 
jection there  was,  that  the  arbitrators  were  assuming  a  jurisdiction 
over  matters  which  the  parties  had  not  submitted  to  them ;  and  this 
the  court  held  to  be  a  substantial  objection.    The  judgment  of  the 
court,  however,  did  not  proceed  even  upon  that,  but  upon  this, — that 
the  declaration  was  upon  the  express  submission  of  the  parties,  and 
not  upon  an  implied  submission  arising  from  the  acts  and  conduct  of 
either  of  them  in  the  course  of  the  reference,  and  consequently  the 
evidence  of  acquiescence  was  irrelevant  and  inapplicable.    In  truth, 
it  was  an  attempt  to  alter  the  nature  and  extent  of  the  submission  by 
the  conduct  of  one  of  the  parties  to  it.    I  must  say  I  should  have 
been  surprised  if  any  case  could  have  been  cited  to  *sustain  r^on^ 
such  an  objection  as  this.    It  seems  to  me  to  be  a  contradiction  ^ 
in  terms,  to  say  that,  having  protested  against  the  umpire^s  right  to 
proceed,  the  party  protesting  may,  nevertheless,  not  only  attend  and 
watch  the  proceedings,  but  cross-examine  his  adversary's  witnesses, 


202  RINGLAND  v.  LOWNDES.    M.  T.  1863. 

and  call  witnesses  on  his  own  part,  and  then  say  to  the  arbitrator, — 
"  If  you  decide  in  my  favour,  I  am  content ;  but,  if  you  decide  against 
me,  I  will  stand  upon  my  protest,  and  move  to  set  aside  your  award." 
I  entirely  agree  with  my  Brother  Byles,  that  that  objection  cannot  be 
sustained,  and  that  the  plaintiff  is  entitled  to  our  judfgment. 

That  being  so,  then  arises  the  question  as  to  the  mandamus  to  com- 
pel the  board  to  make  and  levy  a  rate  to  satisfy  the  plaintiff's  claim. 
Notwithstanding  the  ingenious  argument  of  Mr.  Lush,  that  the  board 
may  be  so  well  provided  with  funds  that  a  rate  may  be  unnecessary, 
it  is  highly  probable  that  the  only  remedy  that  will  be  available  to 
the  plaintiff  is  the  granting  the  writ.  If  the  board  choose  to  satisfy 
the  claim  without  proceeding  to  make  a  rate,  we  might  possibly  be 
disposed  to  accept  that  as  a  compliance  with  the  mandamus. 

With  regard  to  the  effect  of  the  89th  section  of  the  Public  Health 
Act,  which  was  relied  upon-  by  Mr.  Lush  as  a  bar, — the  six  months 
limited  by  that  act  for  the  making  of  a  retrospective  rate  having 
elapsed  since  the  time  when  the  injury  complained  of  was  sustained,— 
it  seems  to  me  that  the  time  we  are  to  look  to,  is,  the  time  of  making 
the  award  and  the  bringing  of  the  action.  Until  the  award  was  made, 
the  amount  was  not  ascertained. 

For  these  reasons,  as  well  as  for  the  reasons  given  by  my  Brother 
Byles,  I  think  the  plaintiff  is  entitled  to  judgment  and  to  a  writ  of 
mandamus  as  prayed.  Judgment  for  the  plaintiff 


♦2031   *^^-^  MOSES  MONTEFIORE,  Bart.,  Chairman  of  the  Al- 
J       liance  British  and  Foreign  Life  and  Fire  Assurance  Com- 
pany, v.  ISAAC  LLOYD.    Nov.  10. 

Th«  defendBDt  «zeeated  a  bond  bb  surety  to  an  insarane«  oompany  for  the  fidelity  of  A.,  who 
was  appointed  an  agent  of  the  company  at  Adelaide,  and  who  was  about  to  and  afterward*  did 
enter  into  partnership  (as  merchants)  with  B.,  also  an  agent  of  the  company  at  that  place.  The 
condition  of  the  bond  was,  that,  if  A.,  his  heirs,  executors,  Aa,  should  well  and  truly  p^y  and 
account  for  all  moneys  receiyed  hy  Mm,  the  obligation  should  be  roid : — Held,  that  the  defendant 
was  not  responsible  under  this  bond  for  moneys  receired  by  the  firm  of  A.  A  B.,  notwithstanding 
he  was  aware  at  the  time  be  signed  the  bond  that  A.  wa«  about  to  become  partner  with  B. 

Held,  also,  that  the  surrounding  or  "  co-existing  "  circumstances  were  admifsible  for  the  pur- 
pose  of  explaining  what  might  be  ambiguous  in  the  condition. 

This  was  an  action  brought  by  the  plaintiff  as  chairman  of  the  Al- 
liance British  and  Foreign  Life  and  Fire  Assurance  Company, — a 
company  incorporated  under  an  act  of  5  G.  4,  c.  cxxxvii., — against  the 
defendant  upon  a  bond  given  by  him  to  the  company  for  600Z.  under 
the  circumstances  hereinafter  set  forth.  Under  a  judge's  order  made 
by  consent,  the  following  case  was  stated  for  the  opinion  of  the  court 
without  pleadings : — 

1.  In  the  year  1854,  George  Henry  Fox,  who  resided  and  carried 
on  business  at  Adelaide,  in  Australia,  was  the  agent  of  the  Allianoe 
company  at  Adelaide;  and  by  a  letter,  dated  from  Adelaide  the  27th  of 
November,  1854,  the  directors  of  the  company  were  informed  of  his 
desire  that  John  Sanderson  Lloyd  should  be  associated  with  him  ia 
the  agency  of  the  said  company  at  Adelaide.    The  following  is  a  copy 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        203 

of  that  part  of  the  letter  addressed'  to  the  secretary  of  the  company 
in  which  such  desire  is  expressed  : — 

"I  have  now  to  regnest  you  will  be  good  enough  to  intimate  to 
the  directors  my  desire  that  the  name  of  Mr.  John  Sanderson  Lloyd 
should  be  associated  with  mine  in  the  power  of  attorney  for  the  con- 
duct of  this  agency,  as  I  am  about  taking  that  gentleman  into  partner- 
ship. I  may  observe  that  Mr.  Lloyd  has  been  in  my  counting-house 
for  some  time,  and  is  nephew  to  Mr.  J.  S.,  one  of  the  partners  of  the 
firm  of  S.  &  Co.,  and  you  could  apply  to  that  gentleman  as  a  referee, 
in  case  *of  need.  My  more  particular  object  in  writing  this,  r*oo4 
is,  that  I  contemplate  visiting  England  next  year;  and  it  is  ^ 
important  that  the  interests  of  the  company  should  not  sufler  during 
my  absence.  You  will  be  furnished  with  the  necessary  security  for 
Mr.  Lloyd.  I  should  also  further  mention  thai  Mr.  Lloyd  has  had  for 
some  time  the  management  of  this  branch  of  business  in  our  counting- 
house  ;  and  I  consider  him  in  every  way  fully  qualified  to  manage 
eflSciently  the  agency  of  the  company." 

2.  On  the  14th  of  February,  1855,  a  resolution  was  passed  at  a 
meeting  of  the  board  of  directors  of  the  company,  as  follows: — *'That 
Mr.  John  Sanderson  Lloyd,  of  Adelaide,  be  associated  with  Mr.  G.  H. 
Fox  in  the  managenoent  of  the  agency  there,  as  suggested  in  a  com- 
munication from  the  latter  gentleman  dated  the  27th  of  November 
last,  and  that  he  be  required  to  furnish  security  to  the  extent  of 
500/." 

3.  On  the  1st  of  March,  1855,  F.  A,  Englebach,  on  behalf  of  the 
company,  wrote  to  Fox  a  letter  of  which  the  material  portion  is  as 
follows : — 

"I  am  happy  to  inform  you,  that,  in  accordance  with  your  request, 
the  directors  have  associated  Mr.  J.  S.  Lloyd  with  you  in  the  control 
of  the  Adelaide  agency ;  and  a  new  power  of  attorney  will  conse- 
quently be  prepared,  and  forwarded  by  the  next  mail.  It  will  be 
necessary  that  Mr.  Lloyd  execute  a  bond  for  600?.,  to  which  Mr. 
Theodore  Lloyd,  of  the  Stock  Exchange,  and  Mr.  Isaac  Lloyd,  of 
Bristol,  have  undertaken  to  become  sureties." 

4.  The  J.  S.  mentioned  in  the  extract  of  the  letter  of  the  27th  of 
November,  1864,  declined  to  become  one  of  the  sureties  for  J.  S. 
Lloyd,  but  wrote  on  the  7th  February,  1855,  a  let*^r  to  the  defendant, 
who  is  the  father  of  J.  S.  Lloyd,  as  follows : — 

"  Dear  Isaac, — I  send  you  on  the  other  side  an  *extract  of  a  r^oos 
letter  from  G.  H.  Fox  to' the  Alliance  company,  whose  agency  '• 
we  were  the  means  of  obtaining  for  him.  It  will  be  necessary,  if  J. 
S.  Lloyd  be  associated  with  him  in  the  agency,  that  a  bond  signed  by 
two  parties  for  6001  be  entered  into.  As  it  is  only  insuring  his  in- 
tegrity, it  is  a  nominal  thing :  but  I  cannot  be  one,  on  account  of  my 
articles  of  partnership,  which  expressly  prohibit  any  one  of  the  part* 
ners  from  becoming  surety.  I  should  think  J.  S.  Thomas  might  not 
have  the  same  objection;  and  your  own  name  would  do  for  one.  I 
enclose  a  form." 

5.  The  extract  alluded  to  in  the  last-mentioned  letter  was  an  exact 
copy  of  the  extract  set  out  in  the  first  paragraph  of  this  case.  The 
said  letter,  with  the  aforesaid  extract  on  the  other  side  of  it,  was 
received  by  the  defendant  shortly  after  its  date ;  and  he  as  well  as 


205  MONTEFIORB  v,  LLOYD.    M.  T.  1863. 

one  Theodore  Lloyd  consented  to  become  sureties  for  John  Sanderson 
Lloyd. 

6.  On  the  14th  of  March,  1855,  the  defendants  duly  executed  and 
delivered  to  the  company  the  bond  on  which  this  action  is  brought, 
which  bond  was  as  follows : — 

"Know  all  men  by  these  presents,  that  we  John  Sanderson  Lloyd, 
of  Adelaide,  in  the  colony  of  South  Australia,  merchant,  Theodore 
Lloyd,  of  the  Stock  Exchange,  London,  gentleman,  and  Isaac  Lloyd, 
of  Bristol,  in  the  county  of  Somerset,  gentleman,  are  jointly  and 
severally  held  and  firmly  bound  to  the  Alliance  British  and  Foreign 
Life  and  Fire  Assurance  Company  in  the  penal  sum  of  500^.  of  good 
and  lawful  money  of  Great  Britain,  to  be  paid  to  the  said  Alliance 
British  and  Foreign  Life  and  Fire  Assurance  Company,  their  succes- 
sors or  assigns,  for  which  payment  to  be  well  and  faithfully  made  we 
bind  ourselves,  and  each  of  us  our  and  each  of  our  heirs,  executors, 
*2061  ^°^  administrators,  *jointly  and  severally,  firmly  by  these 
^  presents,  sealed  with  our  seals.  Dated  the  14th  day  of  March, 
1855 : 

**  Whereas,  the  above-bounden  John  S.  Lloyd  hath  been  nominated 
and  appointed  by  the  board  of  directors  of  the  Alliance  British  and 
Foreign  Life  and  Fire  Assurance  Company  to  be  an  agent(rt)of  the 
said  company  at  Adelaide,  and  on  such  his  nomination  it  was  stipu- 
lated by  or  on  behalf  of  the  said  company  and  agreed  to  by  the  said 
John  S.  Lloyd,  that  he,  together  with  the  above-bounden  Theodore 
Lloyd  and  Isaac  Lloyd,  should  enter  into  the  above-written  bond  or 
obligation  for  securing  the  fidelity  of  the  said  John  S.  Lloyd  : 

'*  Now,  the  condition  of  the  above-written  bond  or  obligation  is 
such,  that,  if  the  said  John  S.  Lloyd,  his  heirs,  executors,  or  adminis- 
trators, or  some  or  one  of  them,  shall  and  do  from  time  to  time  and 
at  all  times  hereafter  when  and  so  often  as  he  or  they  shall  be  there- 
unto required  by  the  actuary,  secretary,  or  other  officer  of  the  said 
company,  well  and  truly  pay  or  cause  to  be  paid  unto  the  directors  of 
the  said  company,  some  or  one  of  them,  or  to  such  person  or  persons 
as  they  or  he  shall  order,  direct,  or  appoint,  all  such  sum  and  sums  of 
money  as  shall  be  by  the  said  John  S.  Lhyd  had  and  received  as  or  by 
way  of  premiums  for  assurances  effected  with  the  said  company,  or 
otherwise  howsoever  on  account  and  for  the  use  and  benefit  of  the 
said  company,  or  with  which  he  shall  be  intrusted  by  or  on  account 
of  the  said  company ;  and  also  shall  and  do  from  time  to  time  and  at 
all  times  hereafter  when  and  so  often  as  he  or  they  shall  be  thereunto 
required  by  the  said  actuary,  secretary,  or  other  officer,  render  to  the 
♦2071  ^^  *directors,  some  or  one  of  them,  a  true,  just,  and  perfect 
-*  account  of  all  and  every  sum  and  sums  of  money  that  shall 
be  hy  him  had  and  received,  or  paid,  laid  out,  and  expended  for  or  on 
account  of  the  said  company ;  and  also  shall  and  do  well,  truly,  justly, 
and  honestly  in  every  respect  behave  and  conduct  himself  in  his 
said  office  or  employment  of  agent  to  the  said  company, — then  the 
above* written  bond  or  obligation  is  to  be  void,  otherwise  to  be  and 
remain  in  full  force  and  virtue." 

(a)  It  wu  stated  in  the  oeiie,  that  the  word  «  an  "  was,  before  the  execution  of  the  bond,  written 
over  the  word  « the  "  which  last-mentioned  word  was  part  of  a  printed  form,  and  had  been  pra- 
rionsly  straok  oat. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        207 

The  bond  was  also  duly  executed  by  John  Sanderson  Lloyd  and  by 
Theodore  Lloyd. 

7.  On  the  8d  of  April.  1855,  J.  W.  Collins,  on  behalf  of  the 
company,  wrote  a  letter  to  Fox,  of  which  the  material  part  is  as 
follows : — 

'*  I  now  beg  to  forward  a  power  of  attorney  constituting  John  S. 
Lloyd,  Esq.,  an  agent  of  the  company,  and  also  enclose  a  bond  for  his 
signature,  which,  as  he  will  perceive,  has  already  been  executed  by 
the  sureties  to  whom  I  referred  in  my  last." 

The  power  of  attorney  referred  to  in  the  last-mentioned  letter  was 
duly  executed  on  the  28th  of  March,  1855,  by  the  president  and 
directors  of  the  company,  who  thereby  ordained,  nominated,  consti- 
tuted, authorized,  empowered,  and  appointed  Jonathan  Binns  Were, 
George  Henry  Fox,  and  John  Sanderson  Lloyd,  all  of  Adelaide  in 
the  colony  of  South  Australia,  merchants,  jointly^  and  each  or  either  of 
them  separately,  the  true  and  lawful  attorney  and  attorneys  of  the  said 
company  to  assure  buildings,  goods,  and  other  property  in  Adelaide 
and  elsewhere  against  loss  or  damage  by  fire,  subject  to  certain 
conditions  not  material  to  this  case. 

8.  The  said  Jonathan  Binns  Were  mentioned  in  the  aforesaid  power 
of  attorney,  had  been  since  1851  appointed  by  the  president  and 
directors  of  the  said  company  an  agent  of  the  said  company,  and  had 
been  *authorized  and  empowered  by  them  by  power  of  attor-  r*ooQ 
ney,  either  jointly  with  the  said  G.  H.  Fox  or  separately,  to  ^ 
insure  goods,  buildings,  and  other  property  in  Adelaide  and  elsewhere 
against  loss  or  damage  by  fire,  subject  to  the  same  conditions  as  men- 
tioned in  the  aforesaid  power  of  attorney  of  the  28th  of  March;  1855 ; 
but  since  February,  1852,  the  said  Jonathan  Binns  Were  resided  at 
Melbourne,  and  entirely  ceased  to  act  as  agent  for  the  company, 
though  the  power  of  attorney  was  not  actually  taken  away  from  him, 

9.  In  June,  1855,  the  said  John  Sanderson  Lloyd  entered  into 
partnership  with  Fox  at  Adelaide ;  and  they  there  carried  on  business 
under  the  name,  style,  and  firm  of  O.  H.  Fox  &  Co.  until  the  said  firm 
failed,  as  hereinafter  mentioned. 

10.  On  the  19th  of  December,  1855,  the  president  and  directors  of 
the  company  duly  executed  a  power  of  attorney  by  which  they 
nominated,  appointed,  and  authorized  the  said  G.  H.  Fox  and  John  S. 
Llovd,  both  of  Adelaide,  in  the  colony  of  South  Australia,  merchants, 
trading  under  the  firm  of  G.  H.  Fox  &  Co,,  jointly^  and  each  and  either 
of  them  separately,  to  be  the  agents  of  the  said  company  to  assure 
buildings,  goods,  and  other  property  in  Adelaide  and  elsewhere 
against  loss  or  damage  by  fire,  subject  to  certain  conditions  which  are 
not  material  to  the  present  case. 

11.  In  February,  1859,  the  aforesaid  firm  of  G.  H.  Fox  &  Co., 
which  said  firm  consisted  as  aforesaid  of  the  said  George  Henry  Fox 
and  the  said  John  S.  Lloyd,  failed,  and  was  adjudicated  insolvent  in 
the  court  of  insolvency  in  South  Australia ;  and  the  estate  of  the 
said  firm  was  wound  up  and  administered  in  the  said  court. 

12.  At  the  time  of  its  failure,  the  aforesaid  firm  of  G.H.  Fox  &Co. 
was  indebted  to  the  company  in  the  sum  of  4502. 11^.  for  premiums 
received  by  the  said  *  George  Henry  Fox  and  John  S.  Lloyd  as  r#on9 
agents  for  the  said  company  since  the  date  of  the  aibre-  '- 


209  MONTEFIORE  v.  LLOYD.    M.  T.  1863. 

mentioned  bond.  Of  this  sam  8382. 18^.  2d,  was  due  in  respect  of 
premiums  received  for  fire-insurance,  and  1111.  12«.  lOrf.  was  due  in 
respect  of  premiums  received  for  life-insurance.  The  said  company 
proved  for  the  sum  of  450/.  11^.  on  the  joint  estate  of  the  said  firm 
in  the  said  court  of  insolvency,  and  received  thereon  a  dividend  at 
the  rate  of  oa.  Sd,  in  the  pound,  amounting  to  1182.  65.  5d. ;  and  the 
company  have  not  received  any  other  sum  of  money  in  respect  of  the 
aforesaid  sum  of  4502.  11^. 

18.  The  defendant  objects  to  the  admissibility  in  evidence  of  the 
documents  and  matters  referred  to  and  stated  in  the  second,  third, 
fourth,  and  fifth  paragraphs  of  the  above  case. 

The  question  for  the  opinion  of  the  court  was, — ^whether  the  defend- 
ant was  liable  on  the  aforesaid  bond  to  the  said  company  in  respect 
to  the  unpaid  portions  of  the  said  sums  of  8882. 18^  2d.  and  1112.  lis. 
lOd,  or  either  of  them,  or  any  part  thereof. 

The  court  was  to  be  at  liberty  to  draw  any  inferences  from  such  of 
the  above  facts  as  were  admissible  in  evidence  which  a  jury  might 
have  drawn. 

If  the  court  should  be  of  opinion  in  the  affirmative  in  respect  to 
the  unpaid  portions  of  both  the  said  sums,  then  judgment  was  to  be 
entered  up  for  the  ulaintifif  for  8322.  6«.  7d.  and  costs  of  suit. 

If  the  court  should  be  of  opinion  in  the  affirmative  as  to  the  unpaid 
portion  of  the  said  sum  of  8382. 18s,  2d,,  and  in  the  negative  as  to  the 
unpaid  portion  of  the  said  sum  of  1112.  12t.  lOd.,  then  judgment  was 
to  be  entered  up  for  the  plaintifif  for  2492.  I85.  Ilc2.,  with  costs  of 
suit. 

If  the  court  should  be  of  opinion  in  the  affirmative  as  to  the  un^Mud 

*2101   P^^^^^  ^^  ^^^  ^^^  ^^™  ^  nil.  *l2s.  lOd.,  and  in  the  negative 

-I  as  to  the  unpaid  portion  of  the  said  sum  of  8882. 18s.  2d.^  thea 

judgment  was  to  be  entered  up  for  the  plaintiff  for  822.  6s.  9d,^  with 

costs  of  suit. 

If  the  court  should  be  of  opinion  in  the  negative  in  respect  to  the 
unpaid  portion  of  both  the  said  sums,  then  judgment  of  nolle  prosequi, 
with  costs  of  defence,  was  to  be  entered  up  for  the  defendant. 

Lush^  Q.  C,  (with  whom  was  Cohen),  for  the  plaintiff.(ft) — The  cir- 
cumstances under  which  the  defendant  consented  to  enter  into  the 
suretyship  are  clearly  admissible  in  evidence  as  against  him.  No 
doubt,  any  act  done  by  the  creditor  which  has  the  effect  of  altering 
the  position  or  increasing  the  risk  of  the  surety,  without  his  consent, 
discharges  him.  But  here  nothing  was  done  which  was  not  known 
and  contemplated  by  all  the  parties  at  the  time  the  defendant  executed 
the  bond.  The  principal  obligor  having  under  the  circumstances  dis- 
closed by  the  case  entered  into  partnership  with  a  third  person,  can 
the  surety  escape  responsibility  bv  saying  that  the  moneys  received 
by  the  firm  were  not  received  by  his  principal  7  If  an  agent  employs 
a  clerk,  a  receipt  of  money  by  such  clerk  is  a  receipt  by  the  agent. 

(a)  Th«  points  marked  for  trgument  on  Uie  part  of  Uie  plklnUff  wero  ■■  follows : — 

« 1.  Tiiat  the  bond  Nod  ob  ronder*  tho  dofoadani  liablo  in  respeet  of  moneys  rioilTnd  bj 
bim  ■■  acent  for  the  company,  tbongh  he  may  have  received  them  joiaUy  with  Fox : 

'<  2.  That  the  worda  '  an  mgemt,'  which  said  worda  are  in  the  aforesaid  bond,  may  be  aiplaSaed 
by  showinf  what  was  known  to  and  intended  by  the  parties : 

«(8.  That  nothinf  hi^pened  since  the  ezecatioo  of  the  bond  to  discharge  the  defendant  ftoa 
his  UabiU^  as  iwety." 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        210 

I^  instead  of  employing  a  clerk,  be  takes  a  partner,  and  the  partner 
receives  money,  why  is  not  that  equally  a  receipt  by  him  ?  Some 
*case8  which  may  be  relied  upon  on  the  other  side  are  clearly  r#n-t^ 
distingnishable.  The  first  in  order  of  time  is  Bellairs  v.  Ebs-  ^  ^ 
worth,  8  Gampb.  58.  It  was  there  held,,  that  if  A.  become  bound  to 
B.  under  condition  that  C.  shall  truly  account  to  B.  for  all  sums  of 
money  received  by  C.  for  B.'s  use,  and  C.  afterwards,  with  B.*s  know- 
ledge, takes  D.  as  his  partner,  the  guarantee  does  not  extend  to  sums 
of  money  received  by  C.  for  B.'s  usq  after  the  formation  of  the  partner- 
ship. And  Lord  Ellenborough  said :  "  The  defendant  was  surety  for 
Philip  Nott,  and  not  for  Mingay,  Nott  &  Ca  When  the  plaintiffs 
intrusted  their  agency  to  the  new  firm,  the  defendant's  responsibility 
was  at  an  end.  He  by  no  means  undertook  for  the  good  conduct  of 
any  future  partner  with  whom  P.  Nott  might  associate.  The  recital 
and  the  whole  scope  of  the  condition  show  that  the  suretyship  was 
confined  to  P.  Nott  individually."  There,  the  partnership  was  a  new 
act  not  contemplated  by  the  surety  at  the  time  of  entering  into  the 
bondy  and  the  creditors  had  made  a  new  appointment  of  the  firm 
instead  of  the  individual,  whereby  they  increased  the  liability  of  the 
agent.  The  case  may  well  be  sustained  upon  that  ground.  Similar 
in  principle  is  the  case,  of  Moon  v.  The  Alderbury  Union,  8  Exch. 
590.  There,  the  plaintiff'  was  a  co-surety  with  K.  in  a  bond  given  by 
6.  to  the  guardians  of  a  union,  conditioned  for  the  due  accounting  to 
them  of  moneys  received  by  him  as  treasurer.  At  the  time  the  bond 
was  entered  into,  B.  was  a  member  of  a  banking  firm  into  which  the 
moneys  of  the  union  were  afterwards  paid  and  drawn  out  by  the 
guardians  by  checks  in  their  own  name.  The  firm  became  bankrupts, 
and  B.  having  ceased  to  be  treasurer,  the  guardians  demanded  of  the 

K^  intiff  as  such  surety  the  balance  due  from  B.  the  late  treasurer. 
e  plaintiff,  in  ignorance  of 'the  facts,  paid  the  money :  and  it  was 
held  that  the  sureties  were  not  ^liable  on  the  bond,  and  that  r^oio 
the  plaintifi^  having  paid  the  money  in  ignorance  of  the  facts,  *- 
was  entitled  to  recover  it  back.  Parke,  B.,  in  delivering  judgment, 
there  says :  "  For  moneys  so  paid  to  two  or  more  partners,  the  surety 
for  one  is  not  responsible,  according  to  the  cases  cited,  of  Bellairs  v. 
Ebsworth,  and  The  London  Assurance  from  Fire  v.  Bold,  6  Q.  B.  514 
(E.  C.  L.  E.  vol.  38).  Those  cases  show,  that,  if  a  pjerson  is  surety  for 
another  for  the  due  accounting  for  moneys  received  by  him,  the 
receipt  of  the  moneys  by  that  person  and  his  partner  is  not  the  same 
as  the  receipt  by  him  alone^  because  the  surety  may  be  willing  to  be 
aoooantable  fcMr  one  individual,  but  not  for  him  and  his  partner;  and 
a  payment  to  one  partner  is  a  payment  to  both."  There,  the  position 
of  the  surety  was,  without  his  knowledge^  altered  by  the  act  of  the 
creditors.  That  case,  therefore^  like  Bellairs  v.  Ebsworth,  was  essen- 
tially different  in  its  circumstances  from  the  present  case.  The  Lon- 
don Assurance  from  Fire  v.  Bold»  it  is  submitted,  was  not  well  decided. 
There,  the  condition  of  a  bond  given  by  the  defendant  to  the  plaintiff^ 
after  reciting  that  A.  bad  been  appoints  agent  for  the  plaintiff  which 
employment  he  had  accepted,  and  undertaken  to  perforin  the  trnsta 
ttereof,  was  cteelared  to  be,  that,  if  A.  should,  during  his  continuance 
in  such  employment,  faithfullv  demean  and  conduct  himself  and, 
when  required,  account  for  ana  pay  to  the  pkantiff  all  moneya  whioli 


212  MONTEFIORE  v.  LLOYD.    M.  T.  1863. 

he  bad  received  or  should  thereafter  receive  for  the  plaintiff's  use, 
the  bond  should  be  void.  A  declaration  on  the  bond  set  out  the  con- 
dition, and  averred,  that,  while  A.  remained  in  the  employment  of  the 
plaintiff  as  agent  as  aforesaid,  A.  received  for  the  use  of  the  plaintiff 
moneys  amounting,  &c.,  but  did  not  when  required  account,  &c. :  plea, 
that  A.  did  not,  while  he  remained  in  the  service  of  the  plaintiff,  as 
*21^1  ^^^^  agent  as  in  the  declaration  mentioned,  receive  for  *the 
-•  use  of  the  plaintiff  the  sums  mentioned.  The  Court  of  Queen's 
Bench  held  that  the  plaintiff  did  not  support  the  issue  by  proof  that 
A.  and  B.,  as  partners,  were  employed  by  the  plaintiff  as  agents,  and 
in  that  character  had  jointly  received  money  for  the  plaintiff's  use, — 
it  appearing  that  A.  had  never  been  employed  by  the  plaintiff  or 
received  money  for  him  solely :  and  that  no  difference  would  be  made 
by  proof  that  the  defendant  knew  that  A.  was  to  be  employed  only 
as  partner  with  B.  '*  When  a  party,"  says  Lord  Denman,  "  makes 
himself  surety  for  the  conduct,  not  of  A.  and  B.,  but  of  A.,  the  strong- 
er proof  you  give  that  he  knew  the  relation  in  which  A.  and  B.  stood 
to  each  other,  the  stronger  you  make  the  inference  arising  from  his 
mentioning  only  A.  Suppose  the  condition  recited  that  the  two  were 
joint  agents,  and  then  spoke  only  of  the  conduct  of  one,  would  not 
that  be  a  strong  proof  that  the  suretyship  was  intended  to  apply  only  to 
the  separate  acts  of  that  one  ?  Mr.  Kelly's  comment  upon  Bellairs  v. 
Ebsworth  is  very  ingenious ;  but  the  case  is  quite  against  him."  The 
court,  therefore,  assume  that  Bellairs  v,  Ebsworth  governed  the  case 
before  them ;  whereas  the  facts  show  that  the  two  cases  are  essentially 
different. 

Montague  Smith,  Q.  C.  (with  whom  was  H.  T.  Cole\  contri.(a) — ^The 

defendant  by  this  bond  only  became  responsible  for  the  acts  of  John 

*2141   ^'  ^^^y^»  ^^^  ^^^  those  *of  the  firm  of  Fox  &  Co.     The  inten- 

J   tion  of  the  parties  to  the  bond  is  only  to  be  collected  from  the 

instrument  itself:  no  extrinsic  evidence  is  admissible  to  vary  or  ex- 

Elain  it.  There  is  no  ambiguity :  the  recital  is,  that  John  S.  Lloyd 
as  been  appointed  an  agent  of  the  company ;  and  the  condition  is  for 
the  due  accounting  by  him  of  all  moneys  which  shall  be  received  by 
him  on  account  of  the  company.  The  firm  received  the  money ;  and 
the  company  proved  for  the  amount  against  their  estate.  Even  if  ex- 
trinsic evidence  could  be  admitted,  the  case  is  governed  by  The  Lon- 
don Assurance  from  Fire  v.  Bold,  6  Q.  B.  514  (E.  C.  L.  B.  vol.  S3). 
The  court  is,  in  effect,  called  upon  to  overrule  that  case.  Wightman, 
J.,  there  says, — '*  The  recital  is  the  proper  key  to  the  meaning  of  the 
condition."  And  after  referring  to  Hassell  v.  Long,  2  M.  &  Selw.  868, 
he  adds :  "  Here  the  recital  does  not  contain  a  word  referring  to  any 
agency  but  that  of  Addison.  Then  Mr.  Kelly  raises  the  question 
whether  the  receipt  by  Addison  k  Boult  is  a  receipt  by  Addison.  On 
ordinary  principles,  each  party  is  liable  for  receipts  by  either.  But 
the  question  here  is,  not  to  what  extent  the  one  can  make  the  other 

(a)  The  points  marked  for  argmnent  on  the  part  of  the  defendant  were  as  follows : — 

''  I.  That  the  defendant  is  not  liable  under  the  bond  for  moneys  reeeired  by  John  Sandenon 
Lloyd  under  the  faets  stated  in  the  ease : 

'<2.  That. he  is  not  liable  in  respect  of  moneys  reoeited  by  John  Sanderton  Uoyd  JoiBtly 
with  Fox  under  a  Joint  appointment: 

**  8.  That  the  parol  evidence  referred  to  in  the  ease  is  not  admissible  to  add  to,  eonlndieti 
«r  explain  the  terms  of  the  bond." 


COMMON  BENCH  REPORTS.    (15  J,  SCOTT.    N.  S.)        214 

liable  to  the  employer,  but  whether  the  defendant  became  surety  for 
the  acts  of  both." 

lAoh,  in  reply. — Omitting  the  fact  of  the  knowledge  of  the  surety 
that  the  partnership  existed  at  the  time  of  signing  the  bond,  the  case 
of  The  London  Assurance  v.  Bold  is  not  adverse  to  the  present  plain- 
tiflf.  At  the  time  the  defendant  executed  this  bond,  he  knew  his  son's 
intention.  The  fact  of  the  contemplated  partnership  was  communi- 
cated to  him  by  means  of  the  extract  from  Fox's  letter  of  the  27th  of 
November.  The  bond  may  have  two  meanings,  according  to  the  sur- 
rounding circumstances.  Primfi  facie,  it  would  mean  moneys  which 
came  to  the  hands  of  John  S.  *Lloyd  as  agent.  But,  if  it  was  r»oi5 
known  at  the  time  that  he  was  going  to  become  the  partner  of  *■ 
Fox.,  it  may  well  mean  moneys  which  came  to  the  hands  of  the  firm. 
It  is  only  by  looking  at  the  surrounding  circumstances  that  the 
meaning  and  understanding  of  the  parties  can  be  ascertained.  There 
is  in  reality  no  case  which,  fairly  considered,  can  be  said  to  militate 
against  the  plaintiflF's  right  to  recover. 

Erle,  C.  J. — I  am  of  opinion  that  our  judgment  in  this  case  must 
be  for  the  defendant.     If  the  surrounding  circumstances  had  shown 
that  the  bond  could  have  no  operation  unless  the  construction  sought 
to  be  put  upon  it  by  the  plaintiflf  were  the  true  one,  I  am  clear  that 
those  surrounding  circumstances  ought  to  be  taken  into  account.    But 
I  think  the  words  of  the  bond  are  stronger  according  to  the  defend- 
ant's construction.     The  defendant's  undertaking  amounts  to  this, — 
*'  I  undertake  to  be  surety  for  the  integrity  of  John  Sanderson  Lloyd, 
and  am  willing  to  be  answerable  for  any  moneys  of  the  company 
which  may  come  to  his  hands."     The  contention  on  the  .part  of  the 
plaintiff  is,  that  the  defendant  not  only  undertook  to  be  responsible 
for  moneys  received  by  John  Sanderson  Lloyd  individually,  but  for 
partnership  receipts  also, — for  moneys  of  the  company  which  might 
come  to  the  hands  of  Fox  &  Co.    The  words  of  the  bond,  however, 
are  not  so.    Let  us,  then,  look  at  the  surrounding  circumstances.    The 
defendant's  suretyship  originated  in  a  proposal  that  John  Sanderson 
Lloyd  should  enter  into  partnership  with  Fox, — a  general  partnership, 
not  for  the  receipts  of  these  premiums  only.    Fox  and  Lloyd  might 
very  well  have  become  partners  as  merchants,  and  yet  each  of  them 
might  have  been  a  separate  agent  for  an  insurance  company.     The 
first  letter  set  out  in  the  case  discloses  the  fact  of  Fox's  *in-  r«2i  5 
tention  to  come  to  England ;  and  hence  his  desire  to  have  some  ^ 
one  associated  with  him  in  the  agency.    It  is  clear,  that,  during  the 
time  that  Fox  might  be  in  England,  though  Lloyd  might  individually 
receive  premiums  on  policies  effected  by  him,  he  still  would  receive 
them  on  the  partnership  account.     At  the  date  of  the  bond, — March 
14th,  1865, — ^there  was  no  existing  partnership.    And  the  letter  of  the 
7th  of  February,  praying  the  defendant  to  take  upon  himself  the  re- 
sponsibility, assures  him  that  he  will  only  be  answerable  for  the  in- 
tegrity of  bis  son ;  whereas,  the  construction  now  sought  to  be  put 
upon  the  bond  by  the  plaintiff,  is,  that  he  was  becoming  answerable 
for  the  integrity  as  well  as  the  solvency  of  Fox  also.     It  is  said  that 
if  John  Sanderson  Lloyd  had  been  the  sole  agent,  and  he  had  employed 
a  clerk  to  assist  him  in  transacting  the  insurance  business,  the  bond 
would  bare  covered  receipts  by  such  clerk.    To  that  I  assent.    But 


216  MONTEFIORE  t;.  LLOYD.    M.  T.  1863. 

tbe  authority  of  a  partner  is  much  more  extensive  than  that  of  a 
clerk  or  servant.  Then,  the  powers  of  attorney  set  out  in  the  case 
are  all  joint  and  several,  and  are  equally  consistent  with  a  receipt  of 
moneys  by  the  two  as  with  a  receipt  by  each  as  a  separate  agent  for 
the  company.  Upon  the  whole,  I  feel  constrained  to  come  to  the  con- 
clusion that  the  defendant  is  entitled  to  the  judgment  of  the  court. 

Williams,  J. — I  am  of  the  same  opinion :  though,  at  the  same 
time  I  think  it  right  to  say  that  I  do  not  think  the  authorities,  com- 
mencing with  Bellairs  v.  Ebsworth,  and  ending  with  The  London  As- 
surance Company  v.  Bold,  constrain  us, — construing  this  bond  by  the 
light  of  the  surrounding  circumstances, — to  say  that  the  defendant's 
engagement  mieht  not  be  extended  to  make  him  answerable  for 
moneys  received  by  John  Sanderson  Lloyd  in  conjunction  with  a 
•9171  P^^'^^^*  ^^^  *^®  question  *is,  whether  the  surrounding  circum- 
-l  stances  here  do  lead  to  the  conclusion  that  that  was  the  inten- 
tion of  the  parties.  If  such  were  their  intention,  I  think  there  is 
nothing  in  the  language  employed  to  preclude  the  court  from  giving 
effect  to  that  intention :  because,  though  primS  facie  a  receipt  by  A. 
means  by  him  alone,  it  may  yet  appear  that  a  more  extensive  meaning 
was  in  the  contemplation  of  the  parties.  The  question  remains, 
whether  there  is  sufficient  evidence  in  the  surrounding  circumstances 
to  lead  us  with  reasonable  certaintv  to  the  conclusion  that  a  more  ex- 
tensive meaning  was  contemplated.  I  think, — though  at  first  I  was 
inclined  to  think  otherwise, — there  is  no  evidence  of  that.  The  letter 
of  the  7th  of  February,  in  which  was  forwarded  to  the  defendant  an 
extract  from  the  letter  from  Fox  of  the  27th  of  November,  set  out  in 
the  first  paragraph  of  the  case,  informs  the  defendant  that  ''it  will  be 
necessary,  if  John  Sanderson  Lloyd  be  associated  with  him  (Fox)  in 
the  agencv,  that  a  bond  signed  by  two  parties  for  500/.  be  entered 
into:"  and  the  letter  goes  on  to  say, — "As  it  is  only  insuring  his  (that 
is,  John  Sanderson  Lloyd's)  integrity,  it  is  a  nominal  thing."  That 
letter  clearly  indicates  that  the  son  is  to  be  associated  with  Fox  in  the 
agency,  and  holds  out  to  the  defendant  that  he  incurs  no  responsi- 
bility provided  his  son  acta  with  integrity  in  the  business.  I  think 
the  reference  to  the  intended  partnership  justly  leads  to  no  further 
inference  than  this»  that  Fox  and  John  Sanderson  Lloyd  were  to  be 
associated  together  as  partners  in  the  agency,  but  not  that  the  surety 
for  the  latter  was  to  be  responsible  also  for  the  acts  of  Fox.  I  desire 
not  to  express  myself  more  stro&gly  than  is  necessary  for  the  decisioa 
of  this  case  upon  the  facts  as  stated. 

Bylss,  J. — ^I  am  of  the  same  opinion.  I  was  for  some  time  strongly 
*2'181  i°^P^^S9^<^^i^^^^i^^^  that  our  jfsdgment*oaght  tabefor  the 
^  plaintiff:  buttheargament  has  induced  me  to  alter  my  opinion. 
I  rely  chiefly  upon  the  words  of  the  bond.  It  is  troe  that  a  bond  or 
other  instrument  uadsr  seal  caainot  be  varied  b j  an  instrument  not  under 
seal.  The  question  is^  what  is  the  meftniiig  of  this  boad,  regard  beings 
had  to  the  surrounding  circnm^ances?  At  the  time  the  brad  was  sealed^ 
no  partnership'  existi^  between  Fox  and  John  Sanderson  Lloyd.  The 
bond  is  dated  the  14tfa  of  March,  1855,  and  the  partnership  eommeneed 
in  June.  Now,  Ike  sunounding  eircomstanees  are  the  oo-existiRg  ctr- 
cnmstanees.  WhaA  says tha bond?  It  recites  that ''the  abeve-boandea 
John  Sandenon  Lloya  bath  been  Dominated  and  apponU^d  by  the  board 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        2W. 

of  directors  of  the  company  to  be  an  agent  of  the  company  at  Adelaide,'^ 
— ^referring,  therefore,  to  a  still  prior  time, — '*and  on  such  his  nomi- 
nation it  was  stipulated  by  or  on  behalf  of  the  company,  and  agreed 
to  by  the  -said  John  Sanderson  Lloyd,  that  he,  together  with  the 
above-bounden  Theodore  Lloyd  and  Isaac  Lloyd,  should  enter  into 
the  above- written  bond  or  obligation /or  ^ecimn^  the  fidelity  of  the  said 
John  Sanderson  Lloyd."    Then  the  condition  is,  that,  "  if  the  said  John 
Sanderson  Lloyd,  his  heirs,  executors,  or  administrators,  or  some  or 
one  of  them," — and  these  are  most  important  words, — "shall  well  and 
truly  pay  or  cause  to  be  paid  unto  the  directors  of  the  company  all 
such  moneys  tw  shall  be  by  the  said  John  Sanderson  Lloyd  received  as 
or  by  way  of  premiums  on  account  of  the  company,  or  with  which 
he  shall  be  intrusted  by  or  on  account  of  the  company,  and  shall  when 
required  render  true  accounts  of  all  moneys  by  him  received,  &c.,  and 
shall  justly  and  honestly  conduct  himself  in  his  employment  of  agent 
to  the  company,  the  obligation  was  to  be  void."     Looking  at  the 
co-existing  facts,  can  we  reasonably  put  any  other  construction  upon 
this  bond  than  that  the  principal  debtor,  the  agent,  was  to  be  liable 
for  his  own  *acts  and  defaults  only,  and  that  the  sureties  were   |-#2i9 
to  be  liable  for  the  acts  and  defaults  of  the  principal,  and  of  •- 
the  heirs,  executors,  or  administrators  of  that  principal  ?     Even  if 
we  look  at  the  letter  of  the  7th  of  February, — which  I  do  not  think 
would  be  at  all  material, — all  it  says,  is,  that  the  proposed  bond  is 
only  for  insuring  the  integrity  of  John  Sanderson  Lloyd.    So  far 
from  that  letter  leading  to  the  inference  that  the  sureties  are  to  be 
responsible  for  the  acts  or  defaults  of  the  firm,  it  seems  to  me  that  it 
ought  to  lead  to  the  opposite  conclusion.    The  consequence  of  joining 
others  with  the  principal  debtor,  would  be  to  deprive  the  sureties,  in 
case  of  the   principal   debtor's  predeceasing  those  persons,  of  the 
security  which  the  law  gives  them ;  for,  I  take  the  law  of  partnership 
to  be,  that  personal  chattels  of  a  partnership  do  not  survive  to  the 
representatives  of  a  deceased  partner,  but  that  all  choses  in  action  an4 
all  contracts  entered  into  by  the  firm  pass  to  the  survivors,  and  the 
co-contractor's  executors  are  altogether  relieved  therefrom.     Besides 
which,  although  Fox  and  John  Sanderson  Lloyd  were  partners,  yet, 
by  the  authority  under  which  they  acted,  they  were  separate  as  well 
as  joint  attorneys.     What  was  to  prevent  the  company  from  saying, 
that,  as  between  them  and  their  attorneys,  the  accounts  should  be  kept 
separately,  though,  as  between  the  attorneys  themselves,  as  partners^ 
they  might  be  blended  ?     I  feel  convinced  that  the  more  the  matter  is 
considered,  the  more  reason   there  will   be  found  to  be  why  our 
judgment  should  be  for  the  defendant.    I  do  not  at  all  rely  upon  what 
has  sometimes  been  said,  viz.  that  a  surety  is  the  favourite  of  th6 
court.    And  I  will  merely  add  that  the  three  cases  of  Bellairs  v. 
Ebsworth,  The  London  Assurance  Company  v.  Bold,  and  Moon  u. 
The  Alderbury  Union,  are  all  strongly  in  favour  of  the  defendant : 
and,  though  there  is  nothing  in  the  report  of  the  case  of  The  London 
Assurance  Companj  v.  Bold  to  justifv  the  ^conclusion  that  the  rMOQ 
knowledge  of  the  intended  partnership  was  brought  home  to  ^ 
the  defendant,  still,  both  the  Lord  Chief  Justice  and  Mr.  Justice 
Wightman  assume  that  to  be  the  fact  in  their  judgments. 
Kbatino,  J. — ^I  am  of  the  same  opinion,  thoughj^  like  the  re^t  of 
c.  B.  w.  8.,  VOL.  XV.— 10 


22a  MONTEFIORE  v.  LLOYD.    M.  T.  1863. 

tbe  court;  my  mind  has  flactuated  somewhat  in  the  course  of  tbe 
argument.  I  have,  however,  arriyed  at  the  conclusion  that  tbe 
defendant  is  entitled  to  judgment.  The  words  of  the  bond,  taken  by 
themselves,  are  clear  enough.  But  Mr.  Lush  has  relied  upon  the 
extrinsic  evidence  to  show  that  those  words  may  admit  of  a  con- 
struction diflferent  from  that  which  primfi  facie  they  would  seem  to 
import.  If  the  extrinsic  evidence  bad  shown  (as  I  at  one  time  felt 
inclined  to  think  it  did)  that  the  bond  could  have  no  operation  at  all 
unless  the  constniction  contended  for  by  the  plaintiff  were  put  upon 
it,  I  should  have  hesitated  before  I  decided  against  him.  But  that 
difficulty  has  been  entirely  removed  by  the  argument  6f  Mr.  Smith. 
He  has  shown  satisfactorily  that  the  bond  might  have  an  operation 
without  going  to  the  extent  contended  for  on  the  part  of  the  plaintiff. 
It  is  unnecessary  to  repeat  what  has  already  been  better  saia  by  my 
liord  and  my  two  learned  Brothers :  and  I  will  only  add  that  tbe 
impression  produced  upon  my  mind  from  a  consideration  of  the 
•extrinsic  evidence,  is,  that,  although  the  defendant  had  a  knowledge 
which  might  reasonably  have  led  to  the  inference  that  he  did  con- 
template becoming  responsible  for  the  acts  of  the  two  partners,  yet  he 
did  in  truth  contemplate  only  that  he  was  becoming  responsible  for 
the  integrity  of  his  own  son.  For  these  reasons,  I  come  without 
hesitation  to  the  conclusion  that  our  judgment  ought  to  be  for  tbe 
defendant.  Judgment  for  the  defendant. 


»oon   •JANE  ROBBINS,  Administratrix  of  EDWIN  JAMES 
^'^■1  ROBBINS,  deceased,  v.  JONES.    Nov.  16. 

If  a  bighway  is  dedicated  lo  the  public  with  a  dai^erous  obstnioUon  upon  it,  aoch  aa  woald 
have  been  a  nuiaance  if  placed  upon  an  ancient  way, — ^aa,  a  flight  of  ateps,  of  a  projecting  flap, — 
BO  action  can  be  maintained  againal  tbe  peraon  dedicating  it  for  an  injury  caused  tberebj. 

Nor  wlU  aa  action  lie  againat  the  owner  of  a  houae  hairing  a  coTered  area  adjoining  a  pnfalie 
footway,  which  area  waa  in  exiateaee  before  and  at  tbe  time  of  tbe  dedication  of  the  highway, 
a^d  waa  dedicated  to  the  public  before  the  laat  General  Highway  Act,  fur  an  injury  to  an 
indiridual  from  the  giving  way  of  the  covering  of  the  area  in  conaeqnence  of  the  wear  and  tear 
•oecaaioned  by  pnbJio  naer. 

In  1830,  honaea  were  erected  on  land  adjoining  a  new  road  oooatmcted  at  a  high  leFel  aa  sb 
ii^n^roaeh  to  a  new  bridge  aoroaa  tba  Thamea.  Betwaen  tbeae  honaea  and  thta  road  waa  a  ap«»a 
which  waa  covered  over  (aa  a  neana  of  acceaa  to  the  houaea)  by  a  flagging  in  which  were  grat- 
laga  to  let  light  and  air  to  tbe  lower  part  of  tbe  bnildinga,  which  formed  aeparate  tenemeotc, 
ithe  entrance  to  which  waa  upon  the  lower  level  at  tbe  rear.  The  apace  ao  covered  had  bcooiMy 
•Vy  dedication  prior  to  the  Qonaral  Highway  Aet»  6  A  6  W.  4,  e.  60,  a  part  of  the  pobUo  fo«l«ay» 
.|#d  waa  uaed  aa  aipch  by  tha  pablie»  In  1862,  in  eonaeqaenoe  of  a  lai^  namber  of  petaoM 
congregating  upon  t^e  apot,  the  flagging  and  gratii^  in  f^Qt  of  one  of  tbe  houaea  (having 
^ome  weakened  by  uaer)  gave  way,  and  aeveral  peraona  were  precipitated  into  the  area  below 
(a  depth  of  about  thirty  feet),  and  one  of  them  waa  killed : — Held,— in  an  action  by  tho  tridow 
^  the  deoeaaed,  under  Lovd  Campbaira  Act»  0  A  10  Vick  e.  93,— tha^  thete  being  undar  tlia 
•hWWtttaneei  bo  legal  liahUi^  on  the  piarl  of  tba  laaaee  of  tha  boHaef  to  keep  tho  avrfaoa  af 
Ibi*  way  in  repair,  the  action  waa  not  maintainable,— the  gulph  at  the  nAfi  of  the  eanaeway 
being  the  reauU  of  the  road  being  raiaed  by  the  makera  of  it»  not  by  the  land  at  the  aide  being 
BMaiPAted  by  the  proprietora  of  it :  and  that  the  artificial  ebaraeter  of  th0  flagging  and  gmtlBg 
did  not  make  It  mora  or  laat  a  way  to  bo  repaired  by  the  pariah, 

r    h  landlofdwho  lata  a  konm  i«  a  daagaroaa  atale,  ii  pot  lii^e  ta  tba  teaant'a  onatoviaii  «r 
goaati  for  aooide«la  bjiwaRvif  i«  ooaae^aeBca  diiriag  tbs  tarmu 

JThis  was  an  aelieii  bfought.  by  the  plaioti£^  as  adjaiais^ntrix  of 


COMMON  BENCH  BBPOBTS.    (15  J.  SCOTT.    N.  8.)     „  221 

her  deceased  husband,  to  recover  damages  upder  Lord  Campbell^ 
Act,  9  &  10  Vict.  93,  for  an  accident  resultivg  in  his  death  througk 
the  alleged  negligent  and  improper  conduct  of  the  defendant,  in 
wrongfully  permitting  a  certain  area  adjoining  and  under  a  certain 
public  footway,  the  property  of  the  defendant,  to  be  and  continue  in 
a  dangerous  and  unsafe  condition. 

The  declaration  stated  that  the  defendant  was  owner  and  possessed 
of  certain  houses  and  premises  and  a  certain  area  in  front  of  and 
parcel  of  the  same  immediately  ac(joining  and  under  a  certain  common 
and  public  footway,  and  the  said  area  was  covered  and  protected  with 
and  by  an  iron  grating,  and  it  was  then-  the  duty  of  the  defendant  at 
all  times  to  keep  and  maintain  the  said  area  and  grating  in  good  and 
fluflScient  repair,  so  that  persons  passing  over  and  along  the  *said  r^ooo 
footway  might  not  be  in  danger  .of  falling  into  the  said  area ;  *-  ^^ 
yet  that  the  defendant  wrongfully  permitted  the  same  to  be  and 
continue,  and  the  same  were  and  continued,  in  a  dilapidated,  decayed, 
dangerous,  and  unsafe  state  and  condition,  to  the  danger  of  persons 
lawfully  passing  oyer  and  along  the  said  common  and  public  footway; 
and  the  defendant,  well  knowing  the  premises,  demised  and  let  his 
said  bouses  and  buildings  and  the  said  area  and  grating  in  the  same 
state  and  condition  to  certain  other  persons^  to  wit,  Smith  Allen  Jeffs 
and  Augustus  Jeffs,  and  wrongfully  suffered  and  permitted  the  said 
area  and  grating  to  be  and  continue,  and  kept  and  maintained,  and 
continued  kept  and  maintained  the  same  in  the  same  state  and  con- 
dition, until  the  happening  of  the  grievance  thereinafter  mentioned : 
And  the  said  Edwin  James  Bobbins,  deceased,  afterwards,  to  wit,  on 
the  10th  of  February,  1862,  was  lawfully  passing  over  and  along  the  said 
common  and  public  footway,  as  he  lawfullv  and  properly  might,  and 
by  reason  o£  the  said  dilapidated,  decayed,  dangerous,  and  unsafe  state 
and  condition  of  the  said  area  and  grating,  the  same  fell  in,  and  the 
said  Eldwin  James  Bobbins  was  thrown  down  into  the  said  area, 
whereby  he  was  severely  hurt  and  injured,  and  by  reason  of  the  said 
injuries  thereby  occasioned  to  him  as  aforesaid  the  said  Edwin  James 
Bobbins  afterwards,  and  within  twelve  calendar  months  next  before 
the  brinmng  of  this  suit,  died :  and  the  plainti£^  as  administratrix  as 
aforesaid,  for  the  benefit  of  her  the  said  widow  and  Louise  Jane  Bobbins 
the  child  of  the  said  Edwin  James  Bobbins,  deoaased,  according  to 
the  farm  of  the  statute  in  that  cmq  made  and  provided,  claimed 
XOOOZ. 

The  defendant  pleaded, — first,  not  gailty,-^-«eQOiidly,  that  the  sai4 
area  was  not  immediately  adjoining  w  under  a  oommon  and  public 
footway,  as  alleged, — ^thirdly,  that  the  said  Edwin  James  Bobbins  wa# 
not  'lawfully  passing  over  or  along  the  said  common  and  r^ooe 
piddic  footwayi  aa  alleged,— fourthly,  tkat  feraona  passing  in  ^  ^ 
and  along  the  «aid  footway  were  not,  at  the  time  the  de&ndani  wm 
pogpssaedof  the  said  hooeee  and  premisea  and  ot  the  said  arei^  in  a»w 
danger  of  falling  in^o  the  seid  a(rea»— fifthlr,  Ihttt  the  said  area  and 
grating  was  no  piMt  of  the  eommoQ  and  fmUlc  footway,  and  thftt»  al 
the  aaid  time  whan»  4^^  the  mi  £dwia  immm  Sobhina  milawfully 
juid  ot  hia  owa  wrovg,  with  otbars,  hreim  and  ntered  the  sail 
gnting,  houses;  and  premises,  and  he  and  otheie  vera  ulM^Ujp 


223*  ROBBINS  ».  JONES.    M.  T.  1863. 

trespassing  on  the  sal^  grating  and  the  said  houses  and  premises,  and 
crowding  thereon,  and  by  reason  thereof  the  said  grating  fell  in,  and 
the  said  Edwin  James  Rohbins  was  thrown  down  and  injured  as  ia 
the  declaration  mentioned.    I^ue  thereon. 

The  cause  was  tried  before  Willes,  J.,  at  the  sittings  at  Westmin- 
ster  after  last  Michaelmas  Term.  The  history  of  the  cause  is  fully 
given  in  the  judgment  of  the  court, — post,  p.  236, — which  was  pre- 
pared by  the  learned  judge  who  presided  at  the  trial. 

On  the  part  of  the  defendant,  it  was  contended  that  the  pavement 
in  question  having  been  dedicated  to  th«  public  and  used  by  them 
prior  to  the  passing  of  the  General  Highway  Act  of  6  &  6  W.  4,  c.  50, 
the  parish  was  bound  to  keep  it  in  repair,  and  no  duty  was  by  law 
oast  upon  the  defendant  to  do  so ;  and,  further,  that,  i^suming  the 
spot  in  question  to  be  private  property,  the  public  had  np  right  to 
congregate  on  it  so  as  to  render  it  dangerous. 

The  learned  judge  put  the  following  questions  to  the  jury : — 

1.  Was  the  flagging  in  question  a  nuisance  causing  danger  to 
persons  lawfully  using  the  highway,  even  considered  as  bounded  by 
the  retaining  walls  of  the  bridge  approaches  ? 

*2241       *^*  ^^  ^*  ^  nuisance  causing  danger  to  persons  lawfully 
J  passing  from  the  highway  to  the  houses  ? 

8.  Were  the  flagging  and  grating  in  a  fit  state,  regard  being  had  to 
the  safety  of  persons  going  to  the  houses  ? 

4.  Were  they  in  a  reasonably  fit  state,  having  regard  to  their  user 
as  a  public  footway  ? 

6.  Were  they  in  a  reasonably  fit  state  for  persons  to  stand  or  walk 
upon  in  any  sense  ? 

6.  Was  the  accident  occasioned  by  the  access  of  an  extraordinary 
crowd,  or  by  the  Improper  state  of  the  flagging  and  grating,  or  bj 
both  combined  ? 

7.  Was  the  deceased  guilty  of  any  negligence  or  misconduct  con- 
tributory to  the  accident  ? 

8.  Was  the  deceased,  when  he  fell,  lawfully  using  the  place  for  tho 
purpose  of  going  to  the  house  ? 

9.  Was  the  spot  in  question  a  public  highway  ? 

The  jury  answered  the  1st,  2d,  8d,  and  8th.  questions  in  the  affirma- 
tive, and  the  4th  and  7th  in  the  negative.  To  the  6th  they  answered, 
— "  Not  in  the  sense  of  a  crowd  always  liable  to  be  gathered  together, 
when  used  as  a  public  highway ;"  to  the  6th, — *'  By  both ;"  and  to  the 
9th, — "  Used  as  such  by  dedication." 

The  learned  judge  thereupon  directed  a  verdict  to  be  entered  for 
the  plaintiff,  and  the  jury  assessed  the  damages  at  2802^  apportioning 
it  as  follows,— 200?.  for  the  widow,  and  80i  for  the  child. 

Luahy  Q.  C.,  in  Hilary  Term  last,  pursuant  to  leave  reserved  to  him 
at  the  trial,  moved  to  enter  a  nonsuit.  He  also  moved  f6r  a  new  trial 
on  the  ground  that  the  findings  of  the  jury  upon  some  of  the  questions 
put  to  them  were  not  warranted  by  the  evidence. 
^251  ,  Ebls,  C.  J. — As  to  the  last  ground,  it  seems  that  the  ^learned 
^  judge  ia  not  dissatisfied  with  the  answers  which  were  given 
bi7  the  jury;  but  we  think  the  rule  may  go,  for  the  purpose  of  eon- 
ndering  their  effeoL 
*  WiLLBS,  J.— I  should  be  inclined  to  say  that  the  defendant  would 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)       225 

be  liable  if  the  paving  and  flagging  were  not  sufficient  to  bear  a  crowd 
such  as  reasonably  might  be  expected .  to  gather  upon  them.  A  way 
that  is  to  be  nsed  by  the  public  should  be  strong  enough  to  hold  up 
all  persons  lawfully  using  it.  At  all  events,  a  jury  might  reasonably 
think  so. 

The  rule  was  ultimately  drawn  up  as  follows : — To  enter  a  nonsuit 
pursuant  to  the  leave  reserved,  on  the  grounds, — first,  that,  on  the 
finding  of  the  jury  that  the  locus  in  quo  was  a  public  highway,  the 
liability  to  repair  was  on  the  parish, — secondly,  that  the  obligation  to 
repair,  if  not  on  the  parish,  was  on  the  lessees, — thirdly,  that  the 
accident  was  occasioned  by  the  negligence  of  the  deceased :  or  for  a 
new  trial,  on  the  ground  that  the  several  findings  of  the  jury  were 
against  the  weight  of  evidence. 

Coleridge,  Q.  C,  and  Martin^  in  Easter  Term  last,  showed  cause. — • 
The  main  question  is,  whether  the  defendant  by  his  negligence  either 
caused  or  materially  contributed  to  the  accident  which  resulted  in 
the  death  of  the  plaintiff's  husband.  Now,  it  is  an  undisputed  fact 
that  the  paving  and  grating  in  question  were  out  of  repair.  The 
defendant's  attention  had  been  called  to  it,  a  communication  having 
been  made  to  his  agent  Lane,  recommending  that  an  arch  be  turned 
under  the  flagging :  and  this  was  prior  to  the  demise  to  the  Messrs. 
Jeffs.  There  are  numerous  cases  to  show  that  one  who,  having  notice 
of  its  existence,  suffers  a  dangerous  nuisance  to  continue,  is  responsible 
for  the  *consequences.  Salmon  v.  Bensley,  R.  &  M.  189,  and  r*ooa 
The  King  v.  Pedly,  1  Ad.  &  E.  822  (E.  0.  L.  R.  vol.  28),  3  N.  L  ^^^ 
k  M.  627,  are  to  that  efiect.  Littledale,  J.,  in  the  last- mentioned  case, 
says :  "If  a  nuisance  be  created,  and  a  man  purchase  the  premises  with 
the  nuisance  upon  them,  though  there  be  a  demise  for  a  term  at  the  time 
of  the  purchase,  so  that  the  purchaser  has  no  opportunity  of  removing 
the  nuisance,  yet  by  purchasing  the  reversion  he  makes  himself  liable 
for  the  nuisance.  But  if,  after  the  reversion  is  purchased,  the  nuisance 
be  created  by  the  occupier,  the  reversioner  incurs  no  responsibility: 
yet,  in  such  a  case,  if  there  were  only  a  tenancy  from  year  to  year,  or 
any  short  period,  and  the  landlord  chose  to  renew  the  tenancy  after 
the  tenant  had  erected  the  nuisance,  that  would  make  the  landlord 
liable.  He  is  not  to  let  the  land  with  the  nuisance  upon  it."  In 
Bich  V.  Basterfield,  4  C.  B.  783  (E.  C.  L.  R.  vol. '56),  where  an  action 
was  brouffht  against  the  owner  of  premises  for  a  nuisance  arising 
from  smoke  issuing  out  of  a  chimney,  to  the  prejudice  of  the  plaintiff 
in  his  occupation  of  the  adjoining  messuage, — on  the  ground  that  the 
defendant,  having  erected  the  chimney,  and  let  the  premises  with  the 
chimney  so  erected,  had  impliedly  authorized  the  lighting  of  a  fire 
therein, — it  was  held  that  the  action  would  not  lie ;  the  nuisance  com- 
plained of,  viz.  the  lighting  of  the  fire,  being  the  act  of  the  tenant 
Cresswell,  J.,  in  delivering  the  judgment  of  the  court,  said :  "If  The 
King  17.  Fedly  is  to  be  considered  as  a  case  in  which  the  defendant  waa 
held  liable  because  he  had  demised  the  buildings  when  the  nuisance 
existed,  or  because  he  had  re-let  them  after  the  user  of  the  buildings  had 
created  a  nuisance,  or  because  he  had  undertaken  the  cleansing  and  had 
not  performed  it, — we  think  the  judgment  right,  and  that  it  does  not 
militate  against  our  present  decision.    But,  if  it  is  to  be  taken  as  a 


227  BOBBINS  v.  JONES.    M.  T.  1863. 

♦S571  *^®^58^^^  ^^**  ^  landlord  is  responsible  for  the  act  of  his  tenant 
J  in  erecting  a  nuisance,  by  the  manner  in  which  he  uses  the 
pl^mises  demised, — we  think  it  goes  beyond  the  principle  to  be  found 
m  any  previously  decided  cases;  and  we  cannot  assent  to  it."  These 
cases  are  commented  upon  by  this  court  in  Todd  v.  Flight,  9  C.  B.  N.  S. 
877  (E.  C.  L.  R.  vol.  99),  where  it  was  held  that  an  action  lies  against 
the  owner  of  premises  who  lets  them  to  a  tenant  in  a  ruinous  and 
dangerous  condition,  and  who  causes- or  permits  them  so  to  remain 
until  by  reason  of  the  want  of  reparation  they  fall  upon  and  injure 
the  house  of  an  adjoining  owner ;  Erie,  0.  J.,  observing  that  they  are 
authorities  for  saying,  '*  that,  if  the  wrong  causing  the  damage  arises 
from  the  non-feasance  or  the  mis-fea.sance  of  the  lessor,  the  party 
suffering  damage  from  the  wrong  may  sue  him."  It  is  upon  that 
principle,  it  is  submitted,  that  the  defendant  is  liable  here.  Bishop 
t;.  Trustees  of  the  Bedford  Charity,  1  Ellis  k  Ellis  697  (E.  C.  L.  R. 
vol.  102),  may  be  distinguished,  on  the  ground  that  the  defendants 
had  no  notice  of  the  insecure  state  of  the  grating.  Fisher  v.  Prowse, 
2  Best  &  Smith  770  (E.  C.  L.  R.  vol.  110),  is  also  distinguishable. 
The  present  case  falls  precisely  within  the  principle  of  Barnes  v. 
Ward,  9  C.  B.  892  (E.  C.  L.  R.  vol.  67).  There,  A.,  being  possessed 
of  land  abutting  on  a  public  footway,  in  the  course  of  building  a 
house  on  such  land,  excavated  an  area,  which,  by  the  negligence  of 
his  work-people,  was  left  unfenced,  so  that  B.,  who  was  lawfully- 
passing  along  the  way,  the  night  being  dark,  without  any  negligence 
or  default  of  her  own,  fell  into  the  area  and  was  killed  :  and  it  was 
held  that  A.  was,  liable,  under  the  9  &  10  Vict  c.  98,  to  an  action  by 
the  husband,  as  administrator,  for  the  benefit  of  himself  and  B.'s 
infant  children.  Maule,  J.,  in  delivering'  the  judgment  of  the  court, 
afker  referring  to  nearly  all  the  authorities,  says :  "The  result  is, — 
•2281  considering  that  the  present  case  refers  to  a  newly-made  *ex- 
J  cavation  adjoining  an  immemorial  public  way,  which  rendered 
the  way  unsafe  to  those  who  used  it  with  ordinary  care, — it  appears  to 
«ls,  after  much  consideration,  that  the  defendant,  in  having  made  that 
excavation,  was  guilty  of  a  public  nuisance,  even  though  the  danger 
insisted  in  the  risk  of  accidentally  deviating  from  the  road ;  for,  the 
danger  thus  created  may  reasonably  deter  prudent  persons  from  using 
the  way,  and  thus  the  full  enjoyment  of  it  by  the  public  is,  in  effect,  aa 
tnuch  impeded  as  in  the  case  of  an  ordinary  nuisance  to  a  highway.'* 
So  here  is  a  nuisance  or  danger  created  close  to  and  connected  with  a 
public  way  ;  and  the  deceased,  through  no  negligence  of  his  own,  but 
solely  through  the  negligence  and  want  of  care  of  the  defendant,  fell 
through  and  met  with  bis  end.  In  Coupland  v.  Hardingham,  8  Oaropb. 
^  898, — which  is  cited  with  approbation  in  Barnes  v.  Ward, — the  action 
was  case  for  not  railing  in  or  guarding  an  area  before  a  house  in  West* 
minster,  whereby  the  plaintiff  fell  down  into  the  area,  and  was  severely 
hurt :  the  defence  was,  that  the  premises  had  been  in  the  same  condition 
as  far  back  as  could  be  remembered,  and  before  the  defendant  became 
possessed  of  them.  But  Lord  Ellenborough  held,  that,  however  hmg 
the  premises  might  have  been  in  this  condition,  as  soon  as  the  defend- 
unt  took  possession  of  them  he  was  bound  to  guard  against  the 
danger  to  which  the  public  had  before  been  exposed;  and  that  he  was 
liable  for  the  consequences  of  having  neglected  so  to  do,  in  the  same 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        228 

manner  as  if  he  himself  had  originated  the  nuisance:  and  the  learned 
judge  said  that  the  area  belonged  to  the  house,  and  it  was  a  duty 
which  the  law  cast  upon  the  occupier  of  the  house,  to  render  it  secure^ 
In  The  King  v.  Watts,  1  Salk.  857,  2  Ld.  Raym.  856,  which  was  an 
indictment  for  not  repairing  a  house  standing  upon  the  highway, 
ruinous  and  like  *to  fall  down,  which  the  defendant  occupied  r^ooa 
and  ought  to  repair  ratione  tenursd  suse,  the  defendant  pleaded  ^ 
not  guilty,  and  the  jury  found  a  special  verdict,  viz.  that  the  defend- 
ant occupied,  but  was  only  tenant  at  will.  And  Lord  Holt  said : 
"  The  ratione  tenuras  is  only  an  idle  allegation ;  for,  it  is  not  only 
charged,  but  found,  that  the  defendant  was  occupier,  and  in  that 
respect  he  is  answerable  to  the  public ;  for,  the  house  was  a  nuisance 
as  it  stood,  and  the  continuing  the  house  in  that  condition  is  continuing 
the  nuisance."  In  Corby  v.  Hill,  4  C.  B.  N.  S.  556  (E.  C.  L.  R.  vol. 
93),  the  owner  of  land  having  a  private  road  for  the  use  of  persons 
coming  to  his  house,  gave  permission  to  A.,  who  was  engaged 
in  building  on  the  land,  to  place  materials  upon  the  road.  A.  availed 
himself  of  this  permission,  by  placing  a  quantity  of  slates  there,  in 
such  a  manner  that  the  plaintiff  in  using  the  road  sustained  damage. 
It  was  held  that  A.  was  liable  to  an  action  for  such  injury.  Oockburn, 
C.  J.,  there  says :  "  The  proprietors  of  the  soil  held  out  an  allurement 
whereby  the  plaintiff  was  induced  to  come  upon  the  place  in  question : 
they  held  out  this  road  to  all  persons  having  occasion  to  proceed  to 
the  asylum,  as  the  means  of  access  thereto.  Could  they  have  justified 
the  placing  an  obstruction  across  the  way  whereby  an  injury  was 
occasioned  to  one  using  the  way  by  their  invitation?  Clearly  they 
could  not.''  And  Willes,  J.,  says :  "  One  who  comes  upon  another's 
land  by  the  owner's  permission  or  invitation,  has  a  right  to  expect 
that  the  owner  will  not  dig  a  pit  thereon,  or  permit  another  to  dig  a 
pit  thereon,  so  that  persons  lawfully  coming  there  may  receive  injury. 
That  is  80  obvious  that  it  is  needless  to  dwell  upon  it."  That  case, 
which  is  altogether  undistinguishable  from  the  present,  as  well  as 
Hounsell  v.  Smyth,  7  C.  B.  N.  S.731  (E.  C.  L.  R.  vol.  97),  are  referred 
to  in  Bolch  v.  Smith,  7  Hurlst.  &  N.  736,  where  the  Court  of  Ex- 
chequer held,  as  this  court  *had  done  in  Hounsell  v.  Smyth,  r^ogA 
that  the  defendant  was  under  no  obligation  to  fence  against  a  ^ 
danger  on  his  own  land,  unless  it  was  so  placed  as  to  amount  to  a 
public  nuisance.  It  will  be  said  that  this  place  had  become  by  dedi- 
cation a  part  of  the  public  highway,  and  consequently  that  the  duty 
of  keeping  it  in  repair  was  by  law  cast  upon  the  parish.  It  may^ 
however,  well  be,  that  the  public  may  acquire  a  right  to  go  upon  a 
man's  land,  and  yet  the  parish  may  not  be  burthened  with  repair. 
This  was  a  part  of  the  defendant's  premises,  which  for  his  own  con- 
venience he  had  allowed  the  public  to  use  for  the  purpose  of  going  to 
the  shop  windows.  That  there  may  be  a  conditional  or  partial  dedi- 
cation, is  clear  from  Lade  v.  Shepherd,  2  Stra.  1004,  The  King  i;. 
Lloyd,  1  Campb.  261,  The  Marquis  of  Stafford  v.  Coyney,  7  B.  &  0. 
257  (E.  0.  L.  R.  vol.  14),  Cornman  v.  The  Eastern  Counties  Railway 
Company,  lO  Exch.  771,  Le  Neve  v.  The  Vestry  of  Mile  End  Old 
Town,  8  Ellis  &  B.  1054,  Morant  v.  Chamberlin,  6  Hurlst.  &  N.  541, 
and  Fisher  v.  Prowse,  2  Best  &  Smith  770  (E.  C.  L.  R.  vol.  110).  The 
user  of  this  way  by  the  plaintiff  clearly  was  not  an  act  of  trespass. 


230  BOBBINS  i;.  JONES.     M.  T.  1863. 

[Keating,  J. — That  is  settled  by  the  jury.]  The  public,  then,  having 
a  right  to  go  upon  this  spot,  it  was  the  defendant's  duty  to  see  that  it 
was  strong  enough  to  bear  such  amount  of  traflSc  as  might  reasonably 
be  expected  in  a  London  street.  [Byles,  J. — The  dedication  here 
was  prior  to  the  General  Highway  Act,  5  &  6  W.  4,  c.  50,  and  there- 
fore the  duty  to  repair  the  surface  was  by  law  cast  upon  the  parish ; 
The  King  v.  Leake,  2  N.  &  M.  595,  5  B.  &  Ad.  469  (E.  C.  L.  R.  vol. 
27).]  A  highway  may  be  a  highway  for  a  limited  purpose :  Roberts 
v.  Hunt,  15  Q.  B.  17  (E.  C.  L.  R.  vol.  69),  where  Lord  Campbell  says 
that  a  man  must  calculate  the  consequences  before  he  dedicates.  In 
The  King  v.  Pedly,  1  Ad.  &  E.  822  (E.  C.  L.  R.  vol.  28),  3  N.  &  M. 
627,  it  was  held,  that,  if  the  owner  of  land  erect  a  building  which  is 
*2*?n   ^  ii^isance  *or  of  which  the  occupation  is  likely  to  produce  a 

-'  nuisance,  and  lets  the  land,  he  is  liable  to  an  indictment  for 
such  nuisance  being  continued  or  created  during  the  term:  so  also,  if 
he  let  a  building  whicb  requires  particular  care  to  prevent  the  occu- 
pation from  becoming  a  nuisance  and  the  nuisance  occurs  for  want  of 
such  care  on  the  part  of  the  tenant.  And  in  Todd  v.  Flight,  9  C.  B. 
,  N.  S.  377  (E.  C.  L.  R.  vol.  99),  it  was  held  by  this  court  that  an  action 
lies  against  the  owner  of  premises  who  lets  them  to  a  tenant  in  a 
ruinous  and  dangerous  condition,  and  who  causes  or  permits  them  so 
to  remain  until  by  reason  of  the  want  of  reparation  they  fall  upon  and 
injure  the  house  of  an  adjoining  owner.  Brock  v.  Copeland,  1  Esp. 
N.  P.  C.  203,  and  Coupland  v.  Hardingham,  3  Campb.  393,  also  show- 
that  this  action  is  maintainable.  [Byles,  J. — The  jury  have  found 
that  this  way  was  dedicated  to  the  public  with  the  gratings  in  it. 
Who  would  be  bound  to  repair  the  substructure  ?]  The  owner  of  the 
premises  undoubtedly.  As  to  the  verdict  being  against  evidence,  it 
does  not  appear  that  the  learned  judge  who  tried  the  cause  is  dissatis- 
fied with  the  result. 

Lush,  Q.  C,  and  David  Keane,  in  support  of  the  rule. — The  first 
proposition  is  abundantly  sufBcient  to  dispose  of  this  case.  One  who 
dedicates  a  way  to  the  public  incurs  no  liability  and  is  burthened 
with  no  duty  to  keep  it  in  repair.  If  the  public  choose  to  use  it, 
they  must  take  it  cum  onere.  Having  once  made  the  dedication,  the 
owner  of  the  soil  can  do  nothing  to  derogate  from  his  grant.  Fisher 
V.  Prowse,  2  Best  and  Smith  770  (E.  C.  L.  R,  vol.  110),  is  precisely 
in  point.  It  was  there  held,  that,  where  an  erection  or  excavation 
exists  upon  land,  and  the  land  on  which  it  exists,  or  to  which  it  is 
contiguous,  is  dedicated  to  the  public  as  a  highway,  the  dedication 
*2321   ^^^^  ^  taken  to  be  made  to  the  ^public  and  accepted  by  them 

■'  subject  to  the  inconvenience  or  risk  arising  from  the  existing 
state  of  things.  The  defendant  occupied  a  house  adjoining  to  a  public 
street,  with  a  cellar  belonging  to  it,  which  cellar  had  existed  before 
the  defendant  had  anything  in  the  bouse.  The  mouth  of  this  cellar 
opened  into  the  footway  of  the  street  by  a  trap-door.  During  the  day, 
this  trap-door  was  open,  but  at  night  it  was  closed  by  a  flap,  which 
.slightly  projected  above  the  footway,  and  it  had  so  projected  as  long 
as  living  memory  went  back.  The  plaintiflF,  coming  along  the  foot- 
way at  night,  stumbled  over  this  flap,  fell,  and  sustained  injury,  for 
which  he  brought  an  action:  and  it  was  held  that  the  jury  ought  to 
draw  the  conclusion  that  the  cellar-flap  had  existed  as  long  as  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        232 

street,  and  that  the  dedicatiou  of  the  way  to  the  public  was  with  the 
cellar-flap  in  it,  and  subject  to  its  being  continued  there,  and  there- 
fore that  the  defendant  was  not  liable,  as  the  maintenance  of  such  an 
ancient  cellar-flap  was  not  unlawful.  Blackburn,  J.,  in  delivering  the 
judgment  of  the  court,  saya :  "  We  think  we  must,  on  this  reservation 
coupled  with  the  evidence,  take  it  to  have  been  proved  that  there  was 
DO  negligence  on  the  part  of  the  plaintiff  contributing  to  the  accident, 
and  that  the  flap  did  cause  obstruction  to  the  footway  to  such  an 
extent  that  if  the  flap  had  been  put  down  for  the  first  time  after  the 
highway  was  dedicated  to  the  public,  it  would  have  been  a  nuisance 
for  the  consequences  of  which  those  who  maintained  the  nuisance 
woald  be  responsible.  On  the  other  hand,  we  must  take  it  to  have 
appeared  that  the  flap  continued  in  its  original  condition,  and  that  the 
defendant  had  not  altered  it  or  suffered  it  to  get  out  of  repair,  so  as 
to  increase  the  danger  and  obstruction  beyond  what  always  must  have 
existed  since  it  was  there.  And  we  think,  that,  on  its  being  shown 
that  the  cellar-flap  had  ^existed  in  its  present  condition  as  far  r^oRS 
back  as  living  memory  went,  the  jury  ought  to  draw  the  con-  ^ 
elusion  that  it  had  existed  as  long  as  the  street,  and  that  the  dedication 
of  the  way  to  the  public  was  with  this  cellar-flap  in  it,  and  subject  to 
the  reservation  of  its  being  continued  there,  so  far  as  by  law  the  high- 
way could  be  subject  to  it."  In  Cooper  v.  Walker,  2  Best  &  Smith 
770  (E.  C.  L.  R.  vol.  110).  in  which  judgment  was  given  at  the  same 
time  as  that  of  Fisher  v.  Prowse,  the  declaration  was  for  negligently 
and  improperly  placing  in  a  public  street  certain  steps,  so  that  the 
same  were  an  obstruction  to  persons  using  the  street,  and  dangerous 
to  persons  passing  along  it  at  night ;  and  averring  that  the  plaintiff, 
passing  along  the  street,  fell  over  them  and  was  injured.  The  defend- 
ant pleaded  that  tlie  street  was  subject  to  the  right  of  the  occupiers 
of  a  house  adjoining  it  to  have  steps  standing  in  the  highway  and 
leading  up  to  the  outer-door  of  the  house,  all  persons  passing  along 
the  highway  being  entitled  to  pass  on  foot  over  the  steps  as  a  part  of 
the  highway,  which  steps  were  part  of  the  house ;  that,  the  street 
being  lowered  under  the  Metropolis  Local  Management  Act,  18  &  19 
Vict,  c,  120,  the  old  steps  were  necessarily  removed,  and  the  present 
steps  placed  in  their  room ;  and  that  the  new  steps  were  placed  on  the 
same  part  of  the  highway  on  which  the  old  steps  had  stood,  and  caused 
no  greater  obstruction  or  danger  than  did  the  old  steps :  and  it  was 
held  that  the  plea  was  good,  as  the  former  highway  was  subject  to 
the  right  on  the  part  of  the  occupiers  of  the  defendant's  house  to  keep 
these  steps  there,  and  the  lowered  highway  was  subject  to  a  similar 
right.  In  delivering  judgment,  Blackburn,  J.,  says  (p.  779):  *'The 
bw  is  clear,  that,  if  after  a  highway  exists  anything  be  newly  made 
so  near  to  it  as  to  be  dangerous  to  those  using  the  highway, — such, 
for  instance  as  an  excavation,  Barnes  v.  Ward,  9  C.  B.  892  (E.  f^oqa 
C.  L.  B.  vol.  67), — •this  will  be  unlawful,  and  a  nuisance;  as  *- 
it  also  is  if  an  ancient  erection,  as,  a  house,  is  suffered  to  become 
ruinous, — The  Queen  v.  Watts,  1  Salk.  357 :  and  those  who  make  or 
maintain  the  nuisance  in  either  case  are  liable  for  any  damage  sus- 
tained thereby,  just  as  much  as  if  the  nuisance  arose  from  an  obstruc- 
tion in  the  highway  itself:  but  the  question  still  remains,  whether  an 
erection  or  excavation  already  existing,  and  not  otherwise  unlawful 


234  BOBBINS  v,  JONES.    M.  T.  1863. 

becomes  unlawful  when  the  land  on  which  it  exists,  or  to  which  it  is 
immediately  contiguous,  is  dedicated  to  the  public  as  a  way,  if  the 
erection  prevents  the  way  from  being  so  convenient  and  safe  as  it 
otherwise  would  be;  or  whether,  on  the  contrary,  the  dedication 
must  not  be  taken  to  be  made  to  the  public,  and  accepted  by  them, 
subject  to  the  inconvenience  or  risk  arising  from  the  existing  state  of 
things.  We  think  the  latter  is  the  correct  view  of  the  law.  It  isi,  of 
}  course,  not  obligatory  on  the  owner  of  land  to  dedicate  the  use  of  it 
as  a  highway  to  the  public.    It  is  equally  clear  that  it  is  not  com- 

fulsory  on  the  public  to  accept  the  use  of  a  way  when  offered  to  them, 
f  the  use  of  the  soil  as  a  way  is  offered  by  the  owner  to  the  public 
under  given  conditions  and  subject  to  certain  reservations,  and  the 
public  accept  the  use  under  such  circumstances,  there  can  be  no  injus- 
tice in  holding  them  to  the  terms  on  which  the  benefit  was  conferred. 
On  the  other  hand,  great  injustice  and  hardship  would  often  arise,  if, 
when  a  public  right  of  way  has  been  acquired  under  a  given  state  of 
circumstances,  the  owner  of  the  soil  should  be  held  bound  to  alter 
that  state  of  circumstances  to  his  own  disadvantage  and  loss,  and  to 
make  further  concessions  to  the  public  altogether  beyond  the  scope 
of  his  original  intention.  More  especially  would  this  be  the  case 
when  public  rights  of  way  have  been  acquired  by  mere  user.  For 
^noen  instance,  the  owner  of  the  bank  of  a  *canal  or  sewer  may, 
■'  without  considering  the  effect  of  what  he  is  doing,  permit 
passengers  to  pass  along  until  the  public  have  acq^uired  a  right 
of  way  there.  It  is  often  hard  upon  him  that  the  public  right 
should  have  been  thus  acquired;  it  would  be  doubly  so,  if  the 
consequence  were,  that  he  was  bound  to  fill  up  or  fence  off  hia 
canal.'*  [Willes,  J. — The  evidence  was,  not  simply  that  the  flag- 
ging and  grating  were  out  of  repair,  as  such ;  but  that  the  proper 
thing  to  do  to  make  the  way  fit  for  the  public  user,  was,  to  turn  aa 
arch  under  it, — which  nobody  suggested  would  have  been  necessary 
if  it  had  been  used  as  a  private  way  only.]  It  may  be  that  a  structural 
change  might  have  become  necessary  in  consequence  of  the  long  user  of 
the  way  by  the  public.  But  this  was  a  burthen  which  the  law  does  not 
,  cast  upon  the  owner  of  the  adjoining  property :  it  was  the  duty  of  the 
parish.  In  Gale  on  Easements,  3d  edit.  424,  it  is  said :  ''As  a  general 
rule,  easements  impose  no  personal  obligation  upon  the  owner  of  the 
servient  tenement  to  do  anything, — the  burthen  of  repair  falls  upon 
the  owner  of  the  dominant  tenement.  *  Where  I  grant  a  way  ovei 
my  land,  I  shall  not  be  bound  to  repair  it,'  said  Twisden,  J.,  in  Pom- 
fret  V.  Ricroft,  1  Saund.  322  a.  'By  the  common  law  of  England, 
he  that  hath  the  use  of  a  thing  ought  to  repair  it,'  said  Lord  Mans 
field  in  Taylor  v.  Whitehead,  2  Dougl.  745.  '  The  grantor  of  a  way 
is  not  bound  to  repair  it  if  it  be  foundrous:'  1  Wms.  Saund.  322  c. 
Comyns's  Digest,^  Chimin  (D.  6.)  This  is  in  accordance  with  the  prin 
ciples  of  the  Civil  iaW,  which  imposed  the  burthen  of  repair  in  oases 
of  easement  upon  the  owner  of  the  dominant,  and  not  upon  the  owner 
of  the  servient  tenement."  If  the  court  hold  the  lessee  of  the  pro- 
perty responsible  under  such  circumstances  as  these,  it  will  be  carry- 
ing the  liability  of  the  owners  of  property  very  much  further  than 


♦286] 


has  ever  yet  *been  done.     In  Todd  v.  Flight,  9  C.  B.  N.  S.  877 
(E.  C  L.  B.  voL  99),  the  defendant,  when  he  let  the  house. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        236 


knew  of  its  dangerous  condition.  So,  in  The  King  v.  Pedly,  1  Ad.  & 
K  822,  3  N.  &  M.  627,  the  defendant  let  the  land  with  the  auidance 
existing:  it  was  upon  this  ground  that  that  case  was  sustained  in 
Rich  V.  Basterfield,  4  0.  B.  783,  805  (E.  C.  L.  R.  vol.  56).  Here,  how- 
ever it  is  not  shown  that  the  defendant  did  any  act  amounting  to  negli- 
gence. If  there  was  any  obligation  upon  anybody  to*  repair,  it  was 
upon  the  lessees  who  were  in  possession  by  their  tenants.    . 

Cur,  adv,  vuU. 

Ebls,  C.  J.,  now  delivered  the  judgment  of  the  court.(a) 

This  was  an  action  brought  by  the  administratrix  of  one  Bobbins, 
to  recover  damages  under  Lord  Campbell's  Act,  9  &  10  Vict.  c.  93, 
for  the  intestate's  death. 

That  death  took  place  in  consequence  of  the  giving  way  of  a  por- 
tion of  the  east  side  of  the  public  way  leading  to  the  south  end  of 
"Waterloo  Bridge,  by  the  default,  as  it  is  alleged,  of  the  defendant. 
The  part  which  gave  way  consisted  of  flagging  and  a  grating  over  the 
area  of  one  of  the  houses  at  the  side  of  the  road. 

The  material  facts  are  as  folio wa: — Waterloo  Bridge  was  constructed 
under  acts  of  parliament  passed  in  the  53d,  56th,  and  58ili  years  of  G. 
3,(6)  and  was  finished  in  1817.  It  was  necessarily  constructed  so  that 
the  roadway  should  be  at  a  level  much  higher  than  the  river  banks ; 
and,  in  order  to  give  access  to  the  roadway  of  the  bridge  so  construct- 
ed, the  road  leading  to  the  south  end  of  the  bridge  approaches  it 
*upon  a  high  causeway  springing  at  a  considerable  distance,  r^oft? 
For  some  distance  from  the  bridge  persons  passing  along  the  ^ 
causeway  were  protected  against  the  danger  of  falling  over  the  side 
by  a  parapet- wall  or  continuation  upwards  of  the  retaining  wall  of  the 
causeway.  This  wall  is  continued  up  to  a  row  of  houses  of  which  the 
defendant  is  the  lessee,  and  then  ceases.  This  row  of  houses  stands 
upon  the  original  level  of  the  ground,  and  runs  parallel  to  the  cause- 
way and  road  leading  to  the  bridge, — leaving  a  gulf  or  space  of  more 
than  seven  feet  wide  between  the  houses  and  the  retaining  wall  of  the 
causeway.  That  space  belongs  to  the  owner  of  the  houses ;  and  the 
bottom  of  it  is  used  for  areas. 

The  houses  are  divided,  or  capable  of  being  divided,  into  two  dis- 
tinct dwellings,  having  separate  outer  doors.  The  outer  door  of  the 
lower  part  of  each  building  opens  into  a  street  or  court  upon  the  lower 
level.  The  outer  door  of  the  upper  part  of  each  house  opens  upon 
the  level  of  the  causeway  towards  the  road  leading  to  the  bridge ;  and 
the  inhabitants  of  the  upper  part  of  the  house  go  in  and  out  by  that 
door,  and  get  to  and  from  the  road  by  walking  upon  the  structure 
part  of  which  gave  way  under  the  deceased. 

That  structure  consisted  of  flag-stones  resting  at  one  end  for  about 
four  inches  in  and  upon  the  walls  of  the  houses,  and  at  the  other  end 
for  about  six  inches  upon  the  retaining 'wall  of  the  causeway,  so  as  to 
bridge  over  -the  areas.  At  intervals  there  were  gratings  fixed  by 
means  of  horns  into  the  flags,  and  forming  with  them  one  continuous 
footway.  The  gratings  were  not  attached  to  the  houses,  but  were 
fixed  in  the  oentre  of  the  flagging,  and  served  the  double  purpose  of 
being  walked  upon  and  of  letting  through  light  to  the  back  part  of 

(a)  The  OMe  wu  argued  before  Erie,  0.  J.,  Willes,  J.,  Bjles,  J.,  and  Keating,  J. 
(h)  53  O.  3,  0.  clxxziv.,  56  O.  3,  o.  IxiU.,  and  58  Q.  3,  c.  xx^m. 


837  ROBBINS  v,  JONES.    M.  T.  1863. 

the  tenements  below.  The  part  of  this  structure  lying  straight 
MQcn  between  the  doors  and  the  *roadway  was  flagging,  so  that  it 
■^  was  not  necessary  to  walk  upon  the  gratings  in  order  to  get  to 
the  houses.  There  was  a  flagged  foot-pavement  between  the  edge  of 
the  flagging  and  grating  and  the  carriage-way,  on  the  same  level  with 
the  flagging  and  grating  over  the  areas.  Between  it  and  the  flagging 
and  grating  there  was  a  narrow  strip  of  gravel.  The  end  houses  of 
the  row  had  no  flagging  and  grating ;  and  the  space  over  their  areas 
was  enclosed.  The  road  on  the  causeway  was  a  common  highway,  to 
be  repaired  by  the  parish. 

In  the*  course  of  time,  before  the  General  Highway  Act  of  5  &  6 
W.  4,  c.  50,  the  flagging  and  grating  had  been  dedicated  to  the  pub- 
lic and  used  by  them  as  part  of  the  highway  for  foot-passengers ;  and 
it  so  continuea  up  to  the  time  of  the  accident. 

The  fee-simple  of  the  houses  was  in  Lord  Salisbury.  The  defend- 
ant was  tenant  under  him  for  a  term  of  years  created  in  1830,  and 
assigned  to  the  defendant  before  and  vested  in  him  at  the  time  of  the 
accident.  Whilst  he  was  in  possession,  the  flagging  and  grating 
either  became  or  at  least  were  out  of  repair  and  insufficient,  whether 
considered  as  a  passage  to  the  houses  or  as  part  of  a  public  way, 
having  regard  to  the  tendency  of  persons  to  collect  in  crowds  in  or 
near  such  ways  upon  the  occasion  of  a  fire  or  the  like. 

It  did  not  appear  that  any  substructure  was  out  of  repair,  but  only 
that  the  flagging  and  gratings  forming  the  surface  were  out  of  repair. 
It  became  necessary,  in  order  to  effectually  sustain  the  flagging  and 
grating  as  a  way,  in  the  state  to  which  time  and  wear  and  tear  had  re- 
duced them,  to  make  an  entirely  new  work,  viz.  to  turn  an  arch  under 
them,  and  so  to  make  them  safe.  The  defendant  had  notice  of  this 
from  the  parish  in  1859,  some  time  before  the  accident,  whilst  he  was 
in  possession :  but  no  repairs  were  done  between  that  time  and  the 
time  of  the  accident. 

♦2891  *The  defendant  afterwards  underlet  to  two  persons  named 
^  JefiTs,  who  again  underlet  to  a  person  who  let  the  rooms  out  to 
lodgers.(a)  The  rent  due  from  the  lessees  fell  into  arrear,  and  a  dis- 
tress was  put  in  upon  the  lodgers,  who,  having  paid  their  own  rent, 
barred  out  the  bailiff,  who  had  gone  out  for  ren'eshment.  The  bailiff 
proceeded  to  regain  possession  by  force,  and  a  crowd  collected  and 
stood  thick  upon  one  of  the  gratings.  The  deceased  was  passing  by 
at  the  time,  and,  being  beckoned  to  by  one  of  the  lodgers,  he  triea  to 
get  through  the  crowd  to  the  door,  and  in  doing  so  stepped  on  to 
the  grating.  Scarcely  had  he  set  foot  upon  it  when  the  grating  and 
the  flagging  resting  upon  the  house  wall,  and  a  portion  of  that 
resting  upon  the  retaining  wall  of  the  causeway,  gave  way,  and  the 
deceased  fell,  with  about  thirty  others,  down  into  the  area,  and  so  met 
his  death. 

The  fall  of  the  flagging  and  grating  was  caused  by  their  insuffi- 
ciency and  by  the  extraordinary  crowd  pressing  upon  them  at 
the  time. 

The  cause  was  tried  at  the  sittings  after  last  Michaelmas  Term. 
There  was  conflicting  evidence  upon  the  question  of  repairs  and 

(a)  The  lease  granted  to  the  Jeffi  was  surrendered  to  the  defendant,  upon  their  banknipteXj 
en  the  6th  of  Maroh,  1862. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        239 

sufficiency:  but  the  above  must  be  taken  to  be  the  result  of  the 
evidence,  as  established  by  the  verdict.  Under  the  direction  of  the 
judge,  a  verdict  was  found  for  the  plaintiflf,  for  280/.  damages,  subject 
to  the  opinion  of  the  court  as  to  the  defendant's  liability.  No 
question  was  raised  upon'  the  pleadings ;  nor  could  any  usefully  have 
been  raised,  as  the  court  has  power  to  amend :  and  the  question  has 
been  treated  as  arising  upon  the  general  issue.  Probably  it  arises 
also  upon  the  record. 

A  rule  was  obtained  to  enter  the  verdict  for  the  defendant,  or  a 
nonsuit,  which  was  well  argued  in  last  'Easter  Term,  before  fmaq 
my  Brothers  Willes,  Byles,  and  Keating,  and  myself,  when  we  '■ 
took  time  to  consider  of  our  judgment. 

It  is  for  the  plaintiff  to  make  out  that  the  defendant  has  been  guilty 
of  tbe  breach  of  some  duty  which  he  owed  to  the  deceased,  and  that 
thereby  the  accident  was  occasioned.  Whether  he  has  done  so,  may 
be  considered  under  the  following  heads : — 

1.  If  the  passage  over  the  area  be  considered  as  a  private  way  to 
the  bouses,  then  the  reversioner  is  not  liable,  but  the  occupier.  A 
landlord  who  lets  a  house  in  a  dangerous  state,  is  not  liable  to  the 
tenant's  customers  or  guests  for  accidents  happening  during  the  term ; 
for,  fraud  apart,  there  is  ao  law  against  letting  a  tumbledown  house ; 
and  the  tenant's  remedy  is  upon  his  contract,  if  any.  In  this  case 
there  was  none, — not  that  that  circumstance  makes  any  difference  in 
our  opinion. 

2.  If  it  be  considered  as  a  public  way,  then  the  defendant  is  not 
answerable  for  the  area  as  for  a  hole  made  at  the  side  of  the  highwav, 
because  there  was  no  hole  made  by  the  defendant.  The  gulf  at  the 
side  of  the  causeway  was  the  result  of  its  being  raised  by  the  makers 
of  it,  not  by  the  land  at  the  side  bein^  excavated  by  the  proprietors 
of  it.  The  alleged  hole  was  coeval  with  the  highway,  and  a  conse- 
quence of  the  making  thereof  In  Barnes  v.  Ward,  9  C.  B.  392, 
there  was  a  hole  made  by  the  defendant,  and  it  was  made  after  the 
dedication  of  the  road. 

S.  As  for  the  suggested  liability  to  repair,  upon  the  ground  that 
the  construction  was  beneficial  to  the  proprietor  of  the  houses,  that 
benefit  was  only  retained  by,  not  conferred  upon  him.  It  is  familiar 
law,  that  a  bridge  made  by  a  private  individual  for  his  own  benefit  at 
an  ancient  ford,  if  useful  to  the  public,  is  to  be  repaired  by  them,  and 
not  by  the  builder.  The  liability  to  repair  a  highway  has  not  been 
made  to  depend  *upon  the  quantum  of  benefit.  If  it  were  so,  r^oAi 
a  man  who  drove  a  flourishing  trade  in  the  house  ought  to  pay  ^ 
for  the  benefit  from  passers  by,  but  not  a  musician  or  the  inventor  of 
the  calculating-machine. 

4.  The  flagging  and  grating  were  not,  like  a  door,  under  the  control 
of  the  occupier,  but  fixed.  They  were  not  worked,  used,  or  worn  out 
by  the  proprietor  of  the  houses,  otherwise  than  as  one  of  the  public 
uses  a  public  highway  on  the  side  of  which  his  house  stands.  The 
passage  of  light  and  air  through  the  grating  does  not  wear  it  out  any 
more  than  the  wind  wears  out  the  surface  of  the  road. 

5.  The  more  or  less  artificial  character  of  the  flagging  and  grating 
does  not  make  it  more  or  less  a  way  to  be  repaired  by  the  parish. 
Whether  it  be  stone,  iron^  wood,  or  composition,  as  it  is  a  public  way; 


241  BOBBINS  r.  JONES.    M.  T.  1863. 

the  public  are  to  keep  it  in  repair,  and  not  the  person  who  dedicated  it» 
Hitherto,  the  exceptions  to  the  liability  of  the  parish  have  been  known. 
They  are  custom,  prescription,  tenure,  and  enclosure  whilst  it  lasts. 
Have  we  authority  to  add  flagging  and  grating? 

6.  The  case  is  not  the  same  as  that  of  an  open  cellar-flap,  which 
may  be  considered  as  a  trap  in  its  nature  and  essence,  unless  it  be 
kept  shut.  Besides,  that  is  worn  out  by  use  for  the  benefit  of  the 
occupier  of  the  cellar  to  which  it  is  the  door.  The  present  case  is 
nearer  to  that  of  a  mine  propped  up,  and  a  way  dedicated  upon  the 
surface.  In  such  a  case,  will  any  one  venture  to  suggest  that  the 
owner  of  the  mine  and  surface,  or  either  of  them,  must  renew  the 
props  when  they  rot  and  the  road  threatens  to  sink  into  the  mine? 

7.  This  does  not  fall  within  the  law  as  to  keeping  buildings  adjoining 
a  highway  in  such  a  state,  by  repair  or  otherwise,  as  not  to  endanger 
passers  by.  What  was  insufficient  here,  was  part  of  the  highway 
*2421  ^*^®^^'     Such  law  may  apply  to  the  arches  of  a  cellar  *under  a 

^  footway, — though  this  we  conceive  to  be  worthy  of  argument, 
and  open  to  distinctions  as  to  the  state  of  things  at  the  time  of  the 
dedication,  and  other  circumstances.  It  cannot  apply  to  the  footway 
itself.  We  may  refer,  by  way  of  illustration  only,  to  the  case  of  one 
of  the  squares,  where  the  footwav  at  one  side  consists  of  large  flags 
reaching  from  the  outer  wall  o^  the  area  to  the  outer  wall  of  the 
cellar.  There,  the  upper  part  of  the  flags  forms  the  way,  and  the 
lower  part  of  the  same  flags  forms,  as  we  are  told,  the  ceiling  of  the 
cellar.  Who  is  to  maintain  and  repair  the  flagged  way  ?  We  appre- 
hend, the  public,  who  walk  upon  it  and  w^ar  it  out;  without  which  it 
might  last  an  indefinite  time. 

It  is  to  be  observed,  that,  in  cases  of  liability  under  this  head,  the 
building  need  not  be  repaired,  but  only  prevented  from  causing  injarr 
by  its  fall ;  which  implies  that  there  is  a  power  to  remove:  and  sucn 
power  does  not  exist  m  this  case, 

8.  It  has  been  suggested^  in  addition  to  the  grounds  relied  upon 
in  argument,  that  the  fact  of  the  flagging  and  grating  conceaUng 
danger,  was  a  special  cause  of  liability.  To  this  we  answer, — first, 
that  the  flagging  and  grating  did  not  prevent  the  existence  of  the 
deep  area  from  being  known  to  everybody  passing,  and  there  was  no 
fraud, — secondly,  that  there  would  have  been  no  danger,  if  the  parish 
had  properly  maintained  and  repaired  the  flagging  and  grating, — 
thirdly,  that  the  defendant  did  not  erect,  and,  as  it  was  a  highway, 
could  not  have  removed,  the  structure.  Moreover,  concealment  is 
relative ;  and  every  such  danger  is  more  or  less  concealed^  If  a  high- 
way is  dedicated,  with  a  dangerous  obstruction  on  it^  sach  aa  would 
have  been  a  nuisance  if  placed  upon  an  ancient  way, — for  instance,  a 
flight  of  ateps,  or  a  projecting  flap, — no  action  can  be  maintained  for 
iui^Tj  causea  thereby,  whether  by  day,  when  it  can  be  seen,  or  by  night, 
iinj*!  *when  it  is  invisible.    In  such  a  case,  il  was  held  by  the  Ck>iur| 

^*^^  of  Queen's  Beach,  in  Fiaher  v.  Prowse,  81  Law  J.,  Q.  B.  212, 
2  Best  &  Smith  770,  that  the  publie  adopting  a  highway  mast  take  it 
in  statu  quo,  and  that  no  obligation  m  imposed  UDon  the  dedioator  to 
remove  projections  or  fill  up  holes  which  naay  be  aangerooa  to  pasaers 
by.  In  that  leading  case,  which  explained  and  overruled  several  qm 
91  whiah  vague  nutiona  of  liabili^  have  aprang  np,  my  Brottkir 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  8.)       243 

Blackburn,  delivering  tbe  judgment  of  the  court,  expounded  with 
clearness  and  force  the  law  applicable  to  this  supposed  ground  of 
liability,  as  follows: — "But  the  question  still  remains,  whether  an 
erection  or  excavation  already  existing,  and  not  otherwise  unlawful, 
becomes  unlawful  when  the  land  on  which  it  exists  or  to  which  it  is 
immediately  contiguous  is  dedicated  to  the  public  as  a  way,  if  the 
erection  prevents  the  way  from  being  so  convenient  and  safe  as  it 
otherwise  would  be;  or  whether,  on  the  contrary,  the  dedication  must 
not  be  taken  to  be  made  to  the  public,  and  accepted  by  them,  subject 
to  the  inconveniences  or  risk  arising  from  the  existing  state  of  things. 
We  think  that  the  latter  is  the  correct  view  of  the  law.  It  is  of 
course  not  obligatory  on  the  owner  of  land  to  dedicate  the  use  of  it 
as  a  highway  to  the  public.  It  is  equally  clear  that  it  is  not  com- 
pulsory on  the  public  to  accept  the  use  of  a  way  when  offered  to  them. 
If  the  use  of  the  soil  as  a  way  is  offered  by  the  owner  to  the  public 
under  given  conditions,  and  subject  to  certain  reservations,  and  the 
public  accept  the  use  under  such  circumstances,  there  can  be  no  injus- 
tice in  holding  them  to  the  terms  on  which  the  benefit  was  conferred. 
On  the  other  hand,  great  injustice  and  hardship  would  often  arise,  if, 
when  a  public  right  of  way  has  been  acquired  under  a  given  state  of 
circumstances,  the  owner  of  the  soil  should  be  held  bound  to  alter 
that  state  of  circumstances  to  his  own  disadvantage  and  *loss,  r^oiA 
and  to  make  further  concessions  to  the  public  altogether  beyond  '• 
the  scope  of  his  original  intention.  More  especially  would  this  be  the 
case  when  public  rights  of  way  have  been  acquired  by  mere  use.  For 
instance,  the  owner  of  the  bank  of  a  canal  or  sewer  (a)  may,  without  con- 
sidering the  effect  of  what  he  is  doing,  permit  passengers  to  pass  along 
until  the  public  have  acquired  a  right  of  way  there.  It  is  often  hard 
upon  him  that  the  public  right  should  have  been  thus  acquired:  it 
would  be  doubly  so  if  the  consequence  was,  that  he  was  bound  to  fill 
up  or  fence  off  his  canal.''  In  this  statement  of  the  law  we  heartily 
concur.  It  is  in  accordance  with  the  general  law  as  to  gifts,  which, 
in  the  absence  of  fraud,  must  be  taken  as  they  are,  without  redress 
against  the  donor  in  respect  of  vice  apparent  or  secret,  and  all  expenses 
in  respect  of  which,  for  repairs  or  otherwise,  are  to  be  borne  by  the 
donee. 

9.  This  conclusion  is  also  id  accordance  with  the  law  as  to  grants 
of  a  right  of  way  or  other  easement,  whether  for  valuable  considera- 
tion or  not,  to  the  effect  that  the  grantee  and  not  the  grantor  is  to 
maintain  and  repair  the  subject  of  the  easement,  with  a  corresponding 
duty  to  do  so  if  bv  his  neglect  tbe  grantor  may  suffer  damage,  and  a 
correspanding  right  to  enter  upon  the  grantor's  land  and  to  do  all 
acts  necessary  for  such  maintenance  and  repair. 

Tbe  authorities  to  this  effect  in  our  own  law,  the  Civil  law,  and  the 
Code  Civil,  will  be  found  in  Gale  on  Basements,  edition  by  Mr.  WiUes, 
i24  et  seq. 

It  thus  appears  to  us,  that,  to  hold  this  action  to  be  maintainable, 
whilsv  it  would  for  the  first  time  impose  a  heavy  burthen  upon  rever 
liooers,  would  violate  well-established  principles  of  law. 

Vk^  rule  to  enter  a  nonsuit  must  therefore  be  made  absolute. 

Bale  absolttte. 

(«)  Rirerf 


24&  WHITE  V.  PHILLIPS.    M.  T.  1863. 


•245]  ♦WHITE  and  Others  v.  PHILLIPS  and  Others.    Nov.  13. 

One  who  erecta  or  keeps  erected  on  the  shore  of  a  nayigable  river  between  high  and  low-water 
mark  a  work  for  the  more  convenient  nse  of  his  wharf  adjoining,  which  work,  either  from  its 
original  defective  construction  or  from  want  of  repair,  presents  a  dangerous  (hidden)  obstrnction 
to  the  navigation,  is  responsible  for  an  injury  thereby  occasioned  to  a  barge  coming  to  the  wharf, 
without  any  default  on  the  part  of  the  persons  in  charge  of  it 

The  defendants  were  possessed  of  a  wharf  abutting  on  the  river  Thames,  the  soil  in  front  of 
which  was  for  the  more  convenient  access  thereto  excavated  by  their  predecessor,  who  placed 
there  a  campsbed,  a  structure  of  piles  and  planks  to  keep  up  the  adjoining  soil.  This  camp* 
shed  was  originally  improperly  constructed,  and  was  suffered  to  be  out  of  repair.  A  barge  of 
the  plaintiffs  was  brought  to  the  wharf  for  the  purpose  of  receiving  goods  by  means  of  the  wharf 
crane  from  a  schooner  which  was  moored  alongside  and  was  discharging  her  cargo  at  the  wharf, 
and  those  in  charge  of  her,  not  being  aware  of  the  existence  or  the  qpndition  of  the  campshod, 
so  moored  the  barge,  that,  on  the  tide  receding,  she  came  upon  one  of  the  piles,  which  forced  a 
hole  in  her  bottom,  and  the  barge  and  its  contents  were  damaged: — 

Held,  that  these  facts  disclosed  a  duty  in  the  defendants  to  keep  the  campshed  in  repair  or 
give  notice  of  the  danger,  and  a  breach  of  that  duty  for  which  they  were  responsible  in  da- 
mages ;  and  that  it  was  immaterial  whether  or  not  the  plaintiffs  paid  for  the  use  of  the  wharf 
or  the  crane. 

This  was  an  action  brought  by  the  plaintiffs  to  recover  compensa- 
tion in  damages  from  the  defendants,  the  occupiers  of  a  wharf  on  the 
banks  of  the  Thames,  for  injury  done  to  certain  slabs  of  marble 
through  the  grounding  of  a  barge  in  which  they  were  contained  upon 
an  obstruction  which  it  was  alleged  the  defendants  had  wrongfully 
permitted  to  exist  in  the  bed  of  the  river  adjoining  their  wharf. 

The  declaration  stated  that  the  defendants,  before,  up  to,  and  after 
the  happening  of  the  damage  thereinafter  mentioned,  were  in  posses- 
sion of  and  had  the  care  and  management  of  a  certain  wharf  on  the 
banks  of  a  certain  navigable  tidal  river,  to  wit,  the  Thames,  commonly 
called  and  known  as  St.  Bride's  wharf,  and  which  said  wharf  was 
used  by  the  defendants  for  the  reception  thereat  of  the  barges  and 
goods  of  customers  in  the  defendants'  trade  of  wharfingers,  and  the 
said  navigable  river  was  the  usual  and  ordinary  means  of  approach  to 
the  said  wharf  for  such  barges  and  goods ;  and  that  the  aefendants, 
being  in  the  possession  of  and  having  the  care  and  management  of  the 
said  wharf  as  aforesaid,  wrongfully  and  negligently  erected  or  caused 
to  be  erected  or  kept  erected  in  the  bed  of  the  said  river,  and  close 
*2461  ^S^^^^^  ^^^  ^^'^  ^^  ^^®  ^^^  *  wharf,  and  adjoining  the  said  navi- 
-'  gable  river,  and  driven  into  the  ground  at  the  outside  base  of 
the  said  wall,  a  certain  campshed  or  mass  of  piles,  at  such  a  height 
and  in  such  a  manner  as  that  the  same  was  at  the  time  of  high  tide 
on  the  said  river  covered  with  water  and  concealed  and  out  of  view, 
and  in  such  a  position  and  at  such  a  depth  that  vessels  and  barges 
coming  to  or  lying  alongside  the  said  wharf  at  high  tide  would  neces- 
sarily be  and  were  in  danger  (unless  the  persons  navigating  and 
directing  the  same  had  notice  of  the  said  campshed  or  mass  of  piles  so 
lying  and  being  there)  of  striking  and  being  dashed  against  the  same 
at  the  fall  of  the  tide,  and  thereby  of  beiu^  greatly  injured  and 
damaged, — of  all  which  premises  the  defendants  always  had  due 
notice,  and  could,  might,  and  ought  to  have  done  their  duty  therein ; 
yet  they  suffered  and  permitted  the  said  campshed  and  mass  of  piles 
to  be  and  continue  at  the  time  of  high  tide  whollv  covered  and  con* 
cealed  and  out  of  view,  and  in  such  a  position  and  at  such  a  depth  as 
aforesaid,  and  the  same  did  continue  wholly  covered  and  concealed 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        246 

and  oat  of  view,  and  in  such  a  position  and  at  such  a  depth  as  afore- 
said, without  the  defendants  taking  or  causing  to  be  taken  any  proper 
care  or  precaution  in  that  behalf,  and  without  using  or  causing  to  be 
used  any  proper  means  to  prevent  or  guard  against  the  said  danger, 
or  whereby  the  said  danger  might  be  prevented  or  guarded  against, 
to  vessels,  ships,  or  barges  at  high  tide  coming  to  or  lying  alongside 
the  said  wharf,  or  without  putting  or  causing  to  be  put  or  placed 
near  the  said  campshed  or  mass  of  piles  any  proper  or  sufficient 
buoy  or  other  sufficient  mark  or  signal  to  give  due  notice  or  warn- 
ing of  the  said  danger :  that,  whilst  the  said  campshed  or  mass  of 
piles  was  and  continued  to  be  so  covered  or  concealed  as  aforesaid, 
without  any  proper  or  sufficient  buoy  or  other  *proper  or  r*247 
sufficient  signal,  or  any  other  due  and  proper  means  being  •■ 
used  to  give  notice  or  warning  of  the  said  danger,  and  whilst  the 
said  campshed  or  mass  of  piles  and  the  said  wharf  and  wall  were  in 
the  possession  and  control  of  the  defendants,  the  plaintiffs  were  law- 
fully possessed  of  a  certain  barge  with  certain  goods  of  the  plain- 
liflfs  on  board  thereof,  which  was  tTien  lawfully  navigating  the  said 
river,  under  the  care,  direction,  and  management  of  certain  mari» 
ners  and  servants  in  that  behalf  of  the  plaintiflFs;  and  the  plaintiflFsj 
by  the  permission  and  at  the  request  of  the  defendants,  just  before 
the  time  when,  &c.,  for  reward  and  payment  to  them  the  defendants,, 
brought  the  said  barge,  with  the  said  goods  on  board,  by  their  said' 
mariners  and  servants,  unto  and  alongside  the  said  wharf  of  the  de- 
fendants at  high  tide,  for  the  purpose  of  loading  there,  as  customers 
of  the  defendants  as  such  wharfingers,  a  certain  carTO  on  the  said 
barge;  and  the  said  barge  being  then  so  brought  and  at  the  time  of 
high  tide  lying  alongside  the  said  wharf,  and  the  plaintiffs  and  the 
said  mariners  and  servants  of  the  plaintiflFs  not  having  any  knowledge 
or  sufficient  means  of  knowledge  of  the  said  danger,  ana  no  due  or 
proper  care  being  taken  by  the  defendants  to  guard  against  the  same, 
and  the  plaintiflts  by  their  said  mariners  and  servants  then  having 
lawful  occasion  and  being  directed  by  the  defendants  for  the  purpose 
aforesaid  to  place  and  moor,  and  to  keep  placed  and  moored,  their 
said  barge  at  such  high  tide,  with  the  said  goods  of  the  plaintiflTs  on 
board,  immediately  over  the  place  where  the  said  campshed  or  mass 
of  piles  so  lay  covered  and  concealed  as  aforesaid,  the  plaintiffs  by 
their  said  mariners  and  servants  did  then  at  such  high  tide  place  and 
raoor  their  said  barge  imrpediately  over  the  said  place,  and  kept  it  so 
placed  and  moored,  and  thereby  afterwards  and  by  means  of  the  pre- 
mises, *and  of  the  said  misconduct,  omission,  and  neglect  of  r«24g 
the  defendants,  and  without  any  negkct  or  default  of  the  plain-  ^ 
tiffs  or  their  said  mariners  and  servants,  the  said  barge,  whilst  the 
said  campshed  or  mass  of  piles  and  the  said  wharf  and  walls  were 
respectively  in  the  possession  and  control  of  the  defendants,  at  and  by 
reason  of  the  fall  of  the  tide  struck  with  great  force  and  violence 
U{K>n  and  against  the  said  campshed  or  mass  of  piles,  whereby  the 
said  barge  heeled  over  and  was  swamped  and  stove  in,  and  the  said 
goods  of  the  plaintiffs  greatly  injured;  and  the  plainfiflb  incurred 
great  expense  in  clearing  the  water  from  the  said  barge,  and  in  sur^* 
rejing  and  repairing  the  damage  done  to  the  same,  and  m  recovering 
and  repairing  the  said  goods  of  the  plaintiffs;  and  the  plaiotiffi  k>sli 

0.  B.  H.  8.,  VOL,  XV.— 11 


248  WHITE  t;.  PHILLIPS.    M.  T.  1863. 

the  use  of  the  said  barge  for  a  long  time,  and  the  freight  and  profits 
which  they  might  have  derived  therefrom.     Claim,  800t 

The  defendants  pleaded, — first,  not  guilty, — secondly,  a  denial  that 
they  erected  the  campshed  or  kept  it  erected,— thirdly,  that  they  had 
not  notice,  as  alleged, — fourthly,  that  the  plaintiffs  did  not  bring  their 
said  barge  to  the  wharf  at  high  tide  for  the  purpose  alleged, — fifthly, 
that  the  plaintiffs  had  due  and  timely  notice  of  the  canipshed,  and  of 
the  danger  arising  therefrom, — sixthly,  that  the  plaintiffs  had  not 
lawful  occasion  and  were  not  directed  by  the  defendants  to  moor  the 
barge  as  alleged.    Issue  thereon. 

The  cause  was  tried  before  Erie,  C.  J.,  at  the  sittings  at  Westminster 
after  last  Trinity  Term.  The  facts  which  appeared  in  evidence  were 
as  follows : — The  defendants  were  wharfingers,  and  had  occupied  St. 
Bride's  wharf  for  about  two  years.  The  former  occupier,  one  Innes, 
had,  several  years  ago,  excavated  the  soil  of  the  river  in  front  of  the 
wharf  for  the  purpose  of  allowing  vessels  to  come  up  to  it  to  load  and 
♦94Q1  *"'^'o*^)  placing  at  the  extremity  of  the  wharf  wall  between 
^  high  and  low  water  mark  a  campshed,  consisting  of  piles  driven 
into  the  bed  of  the  river  and  planking  attached  thereto  with  bolts, 
for  the  purpose  of  keeping  up  the  soil  in  front  of  the  adjoining  wharf. 
This  campshed  (which  was  covered  at  high  water,  but  exposed  at  low 
water),  instead  of  sloping  off*  to  nothing  towards  low-water  mark, 
terminated  abruptly  at  a  point  nearer  to  the  wharf,  and  had  become 
out  of  repair  before  the  defendants*  occupation  of  the  wharf  com- 
menced, part  of  the  planking  having  worn  away  or  been  broken  off, 
leaving  the  piles  projecting  so  as  to  present  a  dangerous  obstacle  to 
any  vessel  which  might  settle  upon  them.  The  defendants'  attention 
had  been  drawn  to  the  condition  of  this  campshed  by  the  occupier  of 
the  adjoining  wharf,  and  they  had  inquired  what  would  be  the  cost 
of  putting  it  into  a  proper  state:  but,  finding  that  it  would  require 
an  outlay  of  80^.,  they  declined  to  do  it,  alleging  that  the  wharf  had 
already  cost  them  so  much  money.  They,  however,  did  some  slight 
repair  to  the  structure;  but  the  first  barge  that  came  to  the  wharf 
knocked  it  away.  The  engineer  of  the  Thames  conservators,  who  had 
examined  the  spot  since  the  accident,  stated  that  the  campshed  was 
improperly  constructed,  and  in  a  dangerous  condition,  and  that,  if  his 
attention  had  been  drawn  to  it,  he  would  have  called  upon  the  defend- 
ants to  repair  it. 

The  plaintiffs  had  brought  their  barge  to  the  wharf  for  the  purpose 
of  receiving  certain  slabs  of  marble  from  a  schooner  which  was  lying 
alongside.  Coming  there  at  high  water,  the  lighterman  in  charge  of 
the  barge  did  not  see  the  piles,  and,  as  he  stated,  was  not  aware  of  the 
existence  of  the  campshed,  nor  did  he  receive  any  caution  on  the 
subject.  The  marble  was  raised  from  the  hold  of  the  schooner  by 
*2501  ^^^^  ^^  ^^^  wharf  crane :  but  the  evidence  was  'conflicting 
-I  as  to  whether  or  not  it  was  ever  landed  on  the  wharf:  and 
there  was  no  evidence  that  anything  was  paid  by  tlie -plaintiffs  for  the 
use  of  the  crane.  As  the  tide  ebbed,  the  barge,  with  the  marble  on 
board,  settled  down  upon  one  of  the  piles  of  the  campshed,  and  before 
those  on  board  could  get  her  ofi^,  a  hole  was  thereby  made  in  her  bot- 
tom, and  the  slabs  of  marble  were  in  consequence  tilted  over  and 
damaged. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)       250 

Witnesses  were  called  on  tbe  part  of  the  defendants  to  prove  that 
the  plaintiff'  lighterman  bad  been  duly  cautioned,  and  tbat  the  acci- 
dent was  entirely  the  result  of  his  negligence :  and  it  was  contended 
on  their  behalf,  that  the  wharf  was  not  being  used  by  the  plaintiff  as 
B  wbarf,  the  permission  to  use  the  crane  for  the  purpose  of  hoisting 
the  roarUe  from  the  schooner  to  the  barge  being  the  gratuitous  act  or 
the  foreman  of  the  wharf;  and  that  no  duty  was,  under  the  circum- 
stances, by  law  oast  upon  the  defendants  as  occupiers  of  the  wharf  to 
repair  the  campshed  erected  by  their  predecessors  in  the  bed  of  the 
river. 

The  case  was  presented  to  the  jury  in  a  manner  which  was  not  com- 
plained of,  and  they  returned  a  veraiot  for  the  plaintiffs.  Leave  was 
reserved  to  the  defendants  to  move  to  enter  the  verdict  for  them,  if  the 
court  should  be  of  opinion  that  the  facts  alleged  in  the  declaration  and 

f)roved  at  the  trial  did  not  disclose  the  breach  on  their  part  of  any 
egal  daty. 

Montagu  Chambers,  Q.  C,  on  a  former  day  in  this  term,  obtained  a 
rule  nisi  accordingly. 

Parry,  Serjt.,  and  Oarth,  now  showed  cause. — The  gravamen  is, 
that  the  defendants  kept  in  a  navigable  river  an  obstruction  which 
amounted  to  a  public  nuisance,  and  that  the  plaintiffs,  lawfully  using 
the  river,  suffered  damage  in  consequence.  The  case  falls  r«25r 
♦precisely  within  the  principle  of  White  v.  Crisp,  10  Exch.  812,  ^ 
where  it  was  held,  that,  where  a  vessel  is  sunk  by  unavoidable  acci- 
dent in  a  public  navigable  river,  whether  in  the  usual  track  of  navi- 
gation or  not,  it  is  the  duty  of  the  owner,  so  long  as  he  continues  to 
have  the  possession  and  control  of  the  vessel,  to  take  due  precaution 
to  prevent  injury  to  other  vessels  by  their  striking  againstit.  Alder- 
son,  B.,  in  delivering  the  judgment  of  the  court,  there  says, — ''The 
subject  was  discussed  by  Mr.  Justice  Maule  in  an  elaborate  judgment 
in  the  case  of  Brown  v.  Mallett,  5  C.  B.  599  (E.  C.  L.  R.  vol.  57),  and 
from  the  principles  there  laid  down  by  him  (which,  however,  were 
not  absolutely  necessary  for  the  decision  of  the  individual  case),  we 
do  not  disagree  at  all.  He  there  lays  it  down  thus, — that  it  is  the 
duty  of  a  person  using  a  navigable  river  with  a  vessel  of  which  he  is 
possessed  and  has  the  control  and  management,  to  use  reasonable 
skill  and  care  to  prevent  mischief  to  others:  and  he  adds  that  his  lia- 
bility is  the  same  whether  his  vessel  is  in  motion  or  stationary,  float- 
ing or  aground,  under  water  or  above  it :  for,  in  all  these  circum- 
stances, the  vessel  may  continue  to  be  in  his  possession  and  under  his 
management  and  control."  Here,  the  defendants,  being  occupiers  of 
the  wharf  with  the  campshed,  and  having  notice  that  it  was  in  a  ruinous 
state  and  dangerous  to  vessels  coming  to  the  wharf,  they  were  clearly 
guilty  of  a  breach  of  duty  in  continuing  it  in  that  condition. 

Montagu  Chambers,  Q.  C.,  and  J.  Brown,  in  support  of  the  rule. — 
The  material  allegations  in  the  declaration,  it  is  submitted,  were  not 
proved :  there  was  no  evidence  of  any  breach  by  the  defendants  of 
any  doty  cast  upon  them  by  the  law.  The  campshed  bein£  in  the 
bed  of  the  river  between  high  and  low-water  mark,  and  vested  by 
statute  in  the  Thames  ^conservators,  any  person  touching  it  r«252 
without  their  consent  would  be  guilty  of  an  illegal  act.  It  '- 
nay  be  that  the  parties  who  let  the  wharf  to  the  defendants  with  this 


252  WHITE  V.  PHILLIPS.     M.  T.  1863. 

ruinous  appendage  might  be  liable,  according  to  the  decision  of  this 
court  in  Todd  v.  Flight,  9  0.  B.  N.  S.  377  (E.  0.  L.  R.  vol.  99) ;  but 
there  was  no  evidence  here  that  the  defendants  ever  used  the  camp- 
shed.  In  Brownlow  v.  The  Metropolitan  Board  of  Works,  13  C.  B, 
N.  S.  768  (E.  C.  L.  R.  vol.  106).  the  metropolitan  board  of  works 
having,  with  the  consent  of  the  Thames  conservators  under  the  21  & 
22  Vict.  c.  104,  8.  28,  but  without  the  consent  of  the  Admiralty  (under 
8.  27),  driven  piles  into  the  bed  of  the  Thames,  and  so  left  them  as  to 
obstruct  the  navigation, — it  was  held  that  they  were  liable  to  an  action 
at  the  suit  of  the  owner  of  a  vessel  which  had  sustained  damage  by 
grounding  on  such  piles,  without  any  negligence  on  the  part  of  those 
in  charge  of  her.  If  a  vessel  be  sunk  in  the  bed  of  a  navigable  river, 
or  a  mooring-anchor  lawfully  placed  there  shifts  its  position,  the  owner 
of  the  sunken  vessel  or  of  the  mooring-anchor  has  been  held  not  to 
be  liable  for  damage  done  to  a  vessel  striking  thereon,  no  duty  being 
cast  upon  him  by  law  to  place  a  buoy  or  to  take  any  other  precaution 
to  warn  persons  navigating  the  river  of  the  hidden  danger :  Brown 
V.  Mallett,  5  0.  .B  599  (E.  C.  L.  R.  vol.  57) ;  Hancock  v.  The  York. 
Newcastle  and  Berwick  Railway  Company,  10  0.  B.  348  (E.  C.  L,  R. 
70).  Chapman  v.  Rothwell,  B.  B.  &  E.  168  (E.  C.  L.  R.  vol.  96),  is 
distinguishable  on  the  ground  put  by  Erie,  J.,  viz.,  that  there  the 
party  injured  came  by  the  invitation  of  the  defendant  to  the  place 
where  the  dangerous  trap-door  was.  Here,  the  defendants  were  guilty 
of  no  wrong;  and  the  plaintifl&  were  not  coming  to  the  wharf  as  cus- 
tomers, but  merely  to  take  the  marble  from  on  board  the  schooner ; 
and  therefore  the  defendants  incurred  no  greater  responsibility  than 
the  defendant  in  Southcote  v.  Stanley,  1  Hurlst.  &  N.  247,  did  to  the 
♦2531  *P^^^^*^^»  ^  visitor,  who  sustained  injury  by  running  against  a 
J  glass-door  of  the  existence  of  which  he  had  no  notice. 
BRiiE,  p.  J. — I  am  of  opinion  that  this  rule  should  be  discharged. 
The  first  and  main  question  is,  whether  the  evidence  given  at  the  trial 
showed  a  breach  of  duty  on  the  part  of  the  defendants.  The  substan- 
tial facts  were  these, — The  defendants  were  the  occupiers  of  a  wharf 
on  the  banks  of  a  navigable  river,  which  had  been  excavated  by  their 
predecessor  for  the  more  convenient  enjoyment  of  the  wharf,  the  soil 
of  the  river  in  front  of  the  adjoining  wharf  being  supported  by  a 
oampshed  which,  if  it  had  been  properly  constructed  and  properly- 
kept  in  repair,  would  have  caused  no  damage  to  any  one.  The  camp- 
shed  not  having  been  properly  constructed, — inasmuch  as  it  termi- 
nated abruDtly,  instead  of  sloping  down  gradually  towards  low- water 
mark, — and  being  suffered,  whilst  the  wharf  was  in  the  defendants* 
ocoupation,  to  be  out  of  repair,  the  plaintiffs'  barge,  being  lawfully 
at  the  wharf  for  the  purpose  of  taking  on  board  certain  marble  slabs, 
settled  down,  as  the  tide  receded,  upon  one  of  the  piles  which  com- 
posed the  campshed,  and  the  barge  and  her  cargo  sustained  damage. 
It  sufficiently  appears,  I  think,  that  a  duty  was  by  law  cast  upon  the 
defendants,  as  occupiers  of  the  wharf,  either  to  keep  the  campshed 
in  repair  or  to  give  notice  to  persons  coming  to  the  wharf  of  the  hid- 
den danger.  It  is  true,  the  oampshed  was  constructed  by  Inues,  the 
pedeoesaox'of  the  defendants,  and  not  by  the  defendants  themselves: 
but  the-  defendaiite^  when  they  auoeeeded  Innes  in  the  occupatiou  of 
ike  whtat,  taooeeded  also  te  the  benefit  of  the  campshed.    That  tbej 


COMMON  JiENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        263 

bad  control  over  it,  was  clear.    And,  when  its  condition  was  pointed 
out  to  them  by  the  occupier  of  the  adjoining  wharf,  and  they    r^ocj 
*were  requested  to  repair  it,  they  objected  to  do  so  on  account   '- 
of  the  expense :  and  they  afterwards  made  an  abortive  attempt  par- 
tially to  repair  it,  and  ultimately,  after  the  accident,  made  it  safe.   AH 
this  showed  that  it  was  a  thing  which  they  might  have  repaired  with- 
out incurring  any  danger  of  being  treated  as  trespassers  by  the  Thames 
conservators :  and  I  am  of  opinion  that  the  facts  abundantly  showed 
that  the  defendants  were  guilty  of  a  breach  of  a  private  duty  in  not 
doing  the  repairs  before.     I  also  think  the  verdict  may  be  sustained 
upon  the  second  ground  urged  on  the  part  of  the  plaintiffs.     In  a 
navigable  river,  in  a  spot  which  is  accessible  to  all  persons  at  high 
tide,  a  structure  is  placed  making  the  navigation  dangerous  to  those 
who  use  it.     It  may  be  that  there  is  some  prescriptive  custom  by 
which  campsheds  between  high  and  low- water  mark  may  be  law- 
ful :  bat  such  a  privilege,  if  it  exists,  can  only  extend  to  such  struc- 
tures as  are  properly  constructed  and  repaired,  and  guarded  by  proper 
precautions  to  prevent  accidents  to  the  subjects  of  the  Queen  lawfully 
using  the  highway.     In  either  view,  therefore,  it  was  the  plaintiffs' 
duty  to  keep  the  campshed  in  a  proper  condition,  and  to  give  due  no- 
tice if  it  were  out  of  repair.   It  has  been  said  that  the  plaintiffs'  barge 
was  there  without  profit  to  the  defendants,  and  therefore  that  the 
plaintiffs  would  have  no  greater  claim  against  them  than  the  visitor 
who  met  with  an  accident  at  the  house  of  a  friend  through  running 
against  a  glass  door  was  held,  in  Southcote  v,  Stanly,  to  have  against 
his  host.     I  do  not  think  that  point  was  made  at  the  trial :  and,  if 
need  bad  been,  I  was  prepared  to  dispose  of  it.    The  schooner  was 
at  the  wharf  in  the  ordinary  way  of  business;  and  the  master  of  the 
schooner,  as  a  customer  of  the  wharf,  got  permission  to  use  the  wharf 
crane  for  the  purpose  of  lifting  the  slabs  from  the  schooner  to  the 
barge.    That  'was  a  use  of  the  wharf  in  the  ordinary  way ;   r*oK5 
and  whether  cranage  was  to  be  paid  by  the  master  of  the  ^ 
schooner,  or  by  the  plaintiffs,  or  by  nobody,  to  my  mind  makes  no 
difference.     The  point  certainly  was  not  discussed  at  all  at  the  trial : 
and,  if  it  had  been  insisted  upon,  no  doubt  more  evidence  might  have 
been  given  upon  the  subject.     Upon  the  whole,  I  am  of  opinion  that 
the  liability  of  the  defendants  for  the  damage  complained  of  was  fully 
made  out. 

Williams,  J. — I  also  am  of  opinion  that  the  plaintiffs  are  entitled 
to  succeed.  The  real  question  before  us  appears  to  me  to  be,  whether 
sufficient  of  the  allegations  in  the  declaration  were  proved  to  consti- 
tute a  cause  of  action.  In  strictness,  according  to  the  doctrine  laid 
down  by  this  court  in  Brown  v.  Mallett,  5  0.  B.  699  (E.  C.  L.  R.  vol. 
57X  the  declaration  would  have  been  in  the  same  plight  if  the  allega- 
tion that  it  was  the  duty  of  the  defendants  to  do  that  which  it  is  said 
they  failed  to  do  had  been  altogether  omitted, — the  allegation  of  duty 
being  mere  surplusage.  The  question  then  is,  whether  the  allegations 
in  this  declaration  which  state  the  damage  complained  of  to  have 
occurred  through  conduct  of  the  defendants  for  which  they  are  re- 
sponsible, are  proved.  It  seems  to  me  that  enough  was  proved  to 
constitute  a  cause  of  action.  I  would  rather  not  ground  my  decision 
upon  the  second  point  put  by  my  Lord, — not  that  I  entertain  any 


255  WHITE  ».  PHILLIPS.    M.  T.  1863. 

doubt  as  to  the  correctness  of  what  he  has  laid  down.  I  do  not  take 
upon  myself  to  decide  that  this  campshed,  though  out  of  repair,  was 
a  public  nuisance.  It  is  unnecessarj  to  go  into  that ;  there  being 
enough  on  the  first  ground  to  show  that  the  defendants  here  are  liable. 
Was  the  campshed  kept  and  continued  in  the  bed  of  the  river  by  the 
defendants  ?  It  has  been  contended  by  Mr.  Chambers  that  it  was  not, 
*9fifil  ^^  ^^^  having  been  originally  ♦placed  there  by  them,  and  the 
-I  defendants  having  no  right  to  meddle  with  it,  but  being  liable 
to  be  treated  by  the  Thames  conservators  as  trespassers  if  they  in  any 
way  interfered  with  it.  The  facts,  however,  show  that  the  campshed 
was  conducive  to  the  more  convenient  occupation  of  the  wharf,  and 
that  the  defendants  had  taken  the  benefit  of  it,  and  had  so  conducted 
themselves  with  regard  to  it  as  to  show  that  they  considered  it  as  part 
of  the  machinery  essential  to  the  carrying  on  of  the  business  of  the 
wharf.  That  being  so,  the  evidence  shows  that  the  damage  to  the 
plaintiff'  barge  was  caused  by  its  bottom  coming  upon  the  sunken 
pile  on  the  receding  of  the  tide,  without  any  negligence  on  the  part 
of  those  in  charge  of  her,  when  moored  for  a  lawful  purpose  alongside 
the  defendants'  wharf.  The  question  is,  whether  the  defendants  were 
not  bound  to  repair  the  campshed,  or  to  give  notice  to  persons  using 
the  wharf  as  a  wharf,  so  as  to  enable  them  to  avoid  the  danger.  It 
deems  to  me  that  they  were,  and  that  for  the  neglect  of  that  duty  they 
are  responsible  in  damages.  I  think  all  the  material  allegations  in  the 
declaration  were  proved,  and  that  the  plaintiffs  are  entitled  to  retain 
the  verdict. 

Bylks,  J. — I  am  of  the  same  opinion  upon  both  grounds.  There 
are,  no  doubt,  many  structures  of  this  kind  on  both  shores  of  the 
river  Thames  which  are  not  nuisances.  But,  upon  the  evidence  given 
upon  the  trial  of  this  case,  there  can  be  no  doubt  that  the  campshed  in 
question  was  originally  constructed  improperly  and  was  sufifered  to 
become  and  to  continue  out  of  repair  and  dangerous  to  persons  navi- 
gating the  river,  and  that  the  plaintiffs  gave  no  notice  of  the  danger. 
The  evidence  was  strong  to  show  that  it  was  a  public  nuisance.  The 
schooner  was  at  the  wharf  unloading,  and  the  barge  was  there  for  the 
♦2571  P^^P*^^®  ^^  *receiving  the  marble  from  the  schooner  by  means 
-'  of  the  crane  belonging  to  the  wharf.  I  therefore  think  the 
barge  was  there  at  the  request  and  for  the  profit  of  the  defendants. 
On  both  grounds,  therefore,  I  think  the  plaintifi&  are  entitled  to  the 
verdict. 

Keating,  J. — I  am  entirely  of  the  same  opinion.  Agreeing  with 
Mr.  Chambers,  as  I  do,  that  all  the  material  allegations  in  the  declara- 
tion are  put  in  issue,  I  think  there  was  abundant  evidence  to  warrant 
the  jury  in  finding  for  the  plaintiffs.  Rule  discharged. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        257 


FELKIN,  Appellant;  BERRIDGE  and  Another,  Respondents. 

Nov.  11. 

The  t2d  Metion  of  the  Pablio  Health  Act,  1848  (11  A  13  Viot  e.  63),  reqaired  certain  notioei 
to  he  given  to  the  local  board  of  health  before  the  laying  oot,  making,  or  building  upon  any 
new  street  This  provision  is  repealed  by  the  Local  Government  Aot^  1858  (21  A  22  Vict  e. 
98),  except  (s.  9)  as  to  "proceedings,  matters,  and  things  respectively  begun  or  made"  under 
any  section  of  the  former  act : — 

SembU,  that,  where  the  proper  notices  had  been  given  and  plans  lodged  under  the  Pnblio 
Health  Act,  this  was  a  "  matter  or  thing  begun  or  made,"  within  s.  9  of  the  Local  Qovernment 
Act,  although  little  or  nothing  appeared  to  have  been  done  towards  the  formation  of  the  streets 
of  which  notice  had  been  'given. 

This  was  a  case  stated  for  the  opinion  of  the  court,  under  the  20  k 
21  Vict.  c.  43. 

At  a  petty  sessions  holden  at  Sittingbourne  on  the  2d  of  June, 
1862,  Richard  Berridge  and  Henry  Bateman  Jenkins,  hereinafter 
called  the  respondents,  appeared  to  answer  a  complaint  laid  against 
them  by  Edward  Felkin,  the  clerk  to  the  Sheerness  local  board  of 
health,  hereinafter  called  the  appellant,  which  charged  that  the  said 
Richard  Berridge  and  Henry  Bateman  Jenkins,  the  owners  of  certain 
land  within  *the  district  of  Sheerness,  lying  between  Berridge  r#oKQ 
Koad  or  Green  Street,  Marina  Town,  and  Marine  Terrace,  *■ 
Ward's  Town,  near  Sheerness,  did  on  the  12th  of  March  last  offend 
against  a  certain  by-law  (No.  28)  duly  made  in  that  behalf  by  the 
local  board  of  health  pursuant  to  s.  84  of  the  local  Government  Act, 
1858,  (21  &  22  Vict.  c.  98),  confirmed,  printed,  and  hung  up  as  required 
by  the  same  act,  and  then  and  still  in  force,  that  is  to  say, — For  that 
the  said  Richard  Berridge  and  Henry  Bateman  Jenkins  did  lay  out  a 
new  street  within  the  said  district,  to  wit,  from  and  out  of  a  certain 
road  leading  from  Banks  Town  to  Oheyney  Eock,  to  a  certain  chapel 
of  and  belonging  to  a  society  called  The  Bible  Christians'  Associa- 
tion at  Marine  Town,  in  the  said  district,  and  did  not  nor  did  either 
of  them  give  one  month's  notice  to  the  local  board  of  such  intention, 
by  writing  delivered  to  the  local  surveyor,  or  lefk  at  his  office,  as  re- 
quired by  the  said  by-law,  in  contravention  thereof;  and  that  the 
said  Richard  Berridge  and  Henry  Bateman  Jenkins  did  not,  nor  did 
either  of  them,  leave  or  cause  to  be  left  at  the  office  of  the  said  sur- 
veyor a  plan  or  section  of  such  intended  new  street,  as  required  by 
the  said  by-law,  in  contravention  thereof. 

By  section  72  of  the  Public  Health  Act,  1848  (11  &  12  Vict.  c.  63), 
it  is  enacted  ''that  one  month  at  the  least  before  any  street  is  newly 
laid  out  as  aforesaid,  written  notice  shall  be  given  to  the  local  board 
of  health,  showing  the  intended  level  and  width  thereof:  and  the  level 
and  width  of  every  such  street  shall  be  fixed  by  the  said  local  board ; 
and  it  shall  not  be  lawful  to  lay  out,  make,  or  build  upon  any  such 
street  otherwise  than  in  accordance  with  the  level  and  width  so  fixed, 
unless,  upon  disapproval  by  the  said  local  board  of  the  level  and 
width  specified  in  such  notice,  the  general  board  of  health  shall  other- 
wise ♦direct;  and  whosoever  shall  lay  out,  make,  or  build  upon  r*259 
any  such  street  otherwise  than  in  accordance  with  the  level  *■ 
and  width  fixed  by  the  said  local  board,  or  approved  by  the  said  gen- 
eral board,  shall  be  liable  for  every  such  offignce  to  a  penalty  not  ex- 
ceeding 20/.  for  every  day  during  which  he  shall  permit  or  suffer  such 


259  FELKIN,  App.,  BERRIDGE,  Resp.    M.  T.  1863. 

street  to  continue  to  be  so  improperly  laid  out,  made,  or  built  upon : 
and  the  said  local  board  may,  if  they  shall  think  fit,  cause  any  such 
street  laid  out  or  made  at  a  level  or  width  otherwise  than  in  accord- 
ance with  the  level  and  width  so  fixed  or  approved  as  aforesaid,  or  any 
building  built  in  any  such  street  otherwise  than  in  accordance  with 
such  level  and  width,  to  be  altered  in  such  manner  as  the  case  may 
require;  and  the  expenses  incurred  by  them  in  so  doing  shall  be  re- 
paid to  them  by  the  offender,  and  be  recoverable  from  him  in  a  sum- 
mary manner:  Provided  always,  that,  if  no  such  level  or  width  be 
fixed,  and  no  approval  or  disapproval  of  the  level  or  width  proposed 
be  signified  by  the  said  local  board  within  one  month  from  the  last- 
mentioned  notice,  the  intended  street  may  be  laid  out  and  made  upon 
the  level  and  of  the  width  specified  in  such  notice,  if  the  same  be 
otherwise  in  accordance  with  the  other  provisions  of  this  act." 

The  Local  Government  Act,  1858  (21  &  22  Vict.  c.  98),  took  effect 
in  the  district  of  Sheerness  local  board  of  health  from  the  1st  of 
September,  1858. 

By  section  34  of  this  act  it  is  enacted  that  the  53d  and  72d  sections 
of  the  Public  Health  Act,  1848,  shall  be  repealed ;  and  in  lieu  thereof 
be  it  enacted  as  follows : — 

"Every  local  board  may  make  by-laws  with  respect  to  the  foU 
lowing  matters,  that  is  to  say, — 1.  With  respect  to  the  level,  width, 
and  construction  of  new  streets,  and  the  provisions  for  the  sewerage 
thereof, — 2.  With  respect  to  the  structure  of  walls,  &o., — 3.  With 


♦2601   *^®^P®^^  *^  ^^®  sufficiency  of  space  about  buildings,  Ac.,- 

^  With  respect  to  the  drainage,  &c. :  and  they  may  further  pro- 
vide for  the  observance  of  the  same  by  enacting  therein  such  provi- 
sions as  they  think  necessary  as  to  the  giving  of  notices,  as  to  the 
deposit  of  plans  and  sections  by  persons  intending  to  lay  out  streets 
or  to  construct  buildings,  as  to  inspection  by  the  local  board,  and  as 
to  the  power  of  the  local  board  to  remove,  alter,  or  pull  down  any 
work  begun  or  done  in  contravention  of  such  by-laws."  (a) 

A  copy  of  the  by-laws  of  the  Sheerness  local  board  of  health,  made 
on  the  25th  of  October,  1860,  in  pursuance  of  this  section,  accompa- 
nied, and,  so  far  as  was  material,  was  to  be  taken  as  part  of  the  case. 

By-law  No.  28  is  as  follows: — "Every  person  who  shall  intend  to 
make  or  lay  out  any  new  street,  whether  the  same  shall  be  intended  to 
be  used  as  a  public  way  or  not,  shall  give  one  month^s  notice  to  the 
local  board  of  such  intention,  by  writing  delivered  to  the  local  sur- 
veyor, or  left  at  his  office,  and  shall  at  the  same  time  leave  or  cause 
to  be  left  at  the  said  office  a  plan  and  section  of  such  intended  new 
street,  drawn  to  a  scale  of  not  less  than  one  inch  to  every  44  feet ;  and 
every  such  plan  shall  show  thereon  the  names  of  the  owners  of  the 
land  through  or  over  which  such  street  shall  be  intended  to  pass,  the 
level,  width,  direction,  the  proposed  mode  of  construction,  the  pro- 
posed name  of  such  intended  new  street,  and  its  position  relatively  to 
the  streets  nearest  thereto,  the  size  and  number  of  the  intended  building 
lots,  and  the  proposed  sites,  height,  class,  and  nature  of  the  buildings  to 
be  erected  therein,  and  the  proposed  height  of  the  division  and  fence- 
valla  thereon ;  and  shall  contain  the  name  and  address  of  the  person 

(a)  See  Cooper  v.  The  Wandsworth  Board  of  Works,  U  C.  B.  N.  S.  180  (B.  CUR.  voL  108). 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        260 

inteDding  to  lay  out  such  new  *8treet,  and  be  signed  by  him  r»o/ji 
or  bis  duly  authorized  agent.  Every  such  section  shall  show  '• 
thereon  the  level  of  the  present  surface  of  the  ground  above  some 
known  fixed  datum,  the  level  and  rate  or  rates  of  inclination  of  the 
streets  with  which  it  will  be  connected,  and  the  level  of  the  lowest 
floors  of  the  intended  new.  buildings." 

Section  9  of  the  Local  Government  Act,  1858,  enacts  that  "all  pro- 
ceedings, contracts,  matters,  and  things  respectively  begun  or  made 
under  any  section  of  the  Public  Health  Act,  1848,  repealed  by  this 
act,  may  respectively  be  proceeded  with  and  enforced  as  if  no  such 
repeal  had  taken  place;  and  all  powers  exercised  or  by-laws  made 
under  any  section  shall  continue  in  force  until  the  new  powers  and 
by-laws  authorized  by  this  act  are  brought  into  operation ;  and  no 
such  repeal  shall  affect  any  decree  or  order  of  the  High  Court  of 
Chancery,  or  of  any  other  court  of  justice  that  has  been  obtained 
previously  to  the  passing  of  this  act." 

It  was  admitted  by  the  appellant  that  the  respondents  had  given 
notices  to  the  local  board,  and  deposited  plans  of  a  new  street  intended 
to  be  laid  out  by  them,  pursuant  to  section  72  of  the  Public  Health 
Act,  1848,  some  time  before  the  Local  Government  Act,  1858,  came 
into  operation. 

The  respondents'  attornev  thereupon  objected  that  the  complaint 
laid  by  the  appellant  alleged  no  offence,  inasmuch  as  the  fact  of  notices 
and  plans  having  been  given,  deposited,  and  accepted  in  compliance 
with '8.  72  of  the  Publiq  Health  Act,  1848,  was  not  negatived.  He 
contended  that  the  notices  given  by  the  respondents  to  and  accepted 
by  the  local  board  prior  to  the  Local  Government  Act,  1858,  was  a 
proceeding,  matter,  and  thing  begun  or  made,  within  the  meaning  of 
section  9  of  the  Local  Government  Act,  1858,  and  might  still  be 
carried  into  execution. 

•No  attorney  appeared  on  behalf  of  the  appellant,  to  argue  r#ogo 
the  question.  '- 

The  justices,  considering  that  the  admission  by  the  appellant  that 
notices  had  been  given  and  plans  deposited  and  accepted  by  the  local 
board  previous  to  the  operation  of  the  Local  Government  Act,  1858, 
was  in  fact  an  answer  to  the  case,  held  the  objection  to  be  good,  and 
dismissed  the  complaint. 

The  question  for  the  opinion  of  the  court  was, — Whether  the  jus- 
tices' decision  in  dismissing  the  said  complaint  on  the  ground  afore- 
said was  or  was  not  right  in  point  of  law. 

If  their  decision  was  right,  their  order  dismissing  the  said  complaint 
was  to  stand  good;  if  not,  the  court  were  to  remit  the  matter  to  the 
justices,  in  order  that  they  might  proceed  further  therein. 

Archibald  (with  whom  was  Lvsh,  Q.  C),  for  the  appellant. — The 
case  is  very  imperfectly  stated :  it  does  not  show  when  the  notice  was 
given  by  the  respondents  under  the  72d  section  of  the  Public  Health 
Act,  1848.  Nothing  was  intended  to  be  saved  by  the  9th  section  of 
the  21  &  22  Vict.  c.  98,  but  what  had  already  been  begun ;  whereas, 
in  truth,  the  notices  and  plan  mentioned  in  the  case  were  deposited 
seven  years  ago ;  and  the  street  in  question  was  one  of  a  great  num- 
ber marked  out  on  the  plan,  only  a  very  small  portion  of  which  had 
been  subsequently  laid  out. 


263  rELKIN,  App.,  BERRIDGE,  Resp.     M.  T.  1863. 

WiJhugkbyf  ior  Ihe  respondents. — The  simplo  question  m,  wfactfaer 
that  which  the  respondents  have  done  was  "  a  matter  or  thing  begun 
or  made  under  the  Public  Health  Act,  1848,  within  the  meaning  of 
the  9th  section  of  the  Local  Government  Act,  1858."  The  72d  section 
of  the  former  act  defines  all  that  the  parties  intending  to  lay  out  any 
♦2631  °®^  street  were  to  do;  *and  all  those  requirements  were  in 
^  this  case  duly  complied  with.  It  is  plain,  it  is  submitted,  from 
the  language  of  the  9th  section  of  the  later  act  that  the  legislature 
never  intended  to  interfere  with  such  a  case.  [Byles,  J. — Would  not 
the  respondents  have  been  justified  in  proceeding  upon  their  notice  in 
the  time  of  the  old  commissioners?]  No  doubt  they  would.  The 
proceeding  is  in  effect  an  attempt  to  make  the  new  board,  under  the 
21  &  22  Vict.  c.  98,  a  court  of  appeal  from  the  old  board.  The  28th 
by-law  of  the  Sheerness  local  board,  set  out  in  the  case,  is  in  terms 
prospective  only. 

Archibald  was  heard  in  reply, 

Erle,  C.  J. — It  is  enough  for  us,  in  order  to  dispose  of  this  case,  to 
say  that  nothing  is  brought  before  us  to  show  that  the  decision  which 
the  magistrates  have  come  to  is  wrong  in  point  of  law.  I  am  anxious 
to  limit  myself  to  answering  the  question  propounded  to  us,  so  that,  in 
case  the  facts  will  enable  the  parties  to  raise  the  point  intended  to  be 
raised  in  a  more  formal  manner,  nothing  that  passes  on  this  occasion 
may  operate  unduly  to  their  prejudice. 

The  rest  of  the  court  concurring, 

Judgment  for  the  respondents. 


*264]  *SAVAGE,  Appellant;  BROOK,  Respondent.    Nov.  11. 

The  62d  section  of  the  Barnsley  ImproTemeiit  Act,  3  G.  4,  c.  »▼.,  imposed  a  penalty  for, 
amongst  other  things,  exposing  for  sale  in  any  of  the  streets,  Ao.,  of  the  town  any  meat,  ^c, 
•0  as  to  project  over  or  upon  any  foot  or  carriageway,  Ac.  The  63d  section  provided  that  no 
person  should  he  subject  to  any  penalty  under  the  act  for  placing  any  stall  or  exposing  prori- 
sions,  Ac,  for  sale,  so  as  such  stalls,  Ac,  be  placed  in  such  part  of  the  streets,  Ac,  as  should  b« 
appointed  by  the  commissioners.  And  the  64th  section  provided  that  no  person  should  be  anb- 
jeot  to  any  penalty  under  the  act  for  placing  any  stall  or  exposing  prorisions,  Ac,  for  sale  in 
such  parts  of  the  streets,  Ac,  as  should  have  been  theretofore  ysed  for  that  purpose  at  the  times 
of  the  usual  fairs  and  markets  within  the  town,  Ac 

In  the  year  1853,  a  local  board  of  health  was  constituted  in  Bamsley  under  the  Public  Health 
Act,  1853  (16  A  17  Vict  o.  24),  who,  by  certain  by-laws  duly  allowed  and  published,  appointed 
certain  places  for  markets  for  certain  descriptions  of  goods  on  market-days,  and  imposed  penal> 
ties  for  the  breach  thereof  :— 

Held,  that  the  provisions  of  the  local  act  did  not  exempt  from  such  penalties  one  who  tio- 
lated  these  by-laws  by  exposing  for  sale  meat,  Ac,  at  a  place  other  than  that  so  appointed  by 
the  local  board  of  health, — notwithstanding  the  spot  where  such  meat,  Ac,  was  so  exposed  for 
sale  was  a  place  where  such  articles  had  for  a  long  series  of  years  been  sold  by  him  and  others* 

On  the  8th  of  June,  1863,  George  Savage,  of  Barnsley,  in  the  west 
riding  of  Yorkshire,  the  duly-appointed  inspector  of  markets  and  fairs, 
laid  an  information  before  a  justice  of  the  peace  against  one  Francis 
Brook,  residing  at  Wakefield,  in  the  said  riding,  which  alleged  that 
"Francis  Brook,  John  Sidebottom,  and  John  Austwick,  all  of  Wake- 
field, in  the  said  west  riding,  butchers,  on  Saturday,  the  6th  of  June 
instant,  at  Barnsley,  in  the  said  west  riding,  after  the  market-place 
within  the  said  district  was  opened  for  public  use,  did  place  and 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        264 

expose  for  sale  certain  articles,  to  wit,  butchers'  meat,  on  the  May-Day 
Green,  in  Barnsley  aforesaid,  the  same  not  being  the  place  appro- 
priated for  the  sale  of  batchers'  meat,  contrary  to  the  directions  of  the 
inspector  of  the  markets,  and  contrary  to  the  statute  and  the  by-laws 
of  the  local  board  in  such  case  made  and  provided." 

The  information  and  complaint  came  on  for  hearing  before  the 
justices  at  a  petty  session  held  at  Barnsley  on  the  10th  of  June  last, 
and  by  adjournment  on  the  21st  of  October,  1863,  when  the  justices 
dismissed  the  same ;  and,  the  appellant  being  dissatisfied  with  their 
decision,  the  following  case  was  stated  for  the  opinion  of  thi<>  court 
pursuant  to  the  20  &  21  Vict.  c.  43  :— 

*A  local  act,  3  G.  4,  c.  xxv.,  intituled  '*  An  Act  for  lighting,   r^oft* 
paving,  cleansing,  watching,  and  improving  the  town  of  Barns-   ^ 
ley,  in  the  west  riding  of  the  county  of  York,"  was  passed  in  1822. 

By  the  62d  section  a  variety  of  annoyances  and  nuisances  in  the 
streets,  lanes,  roads,  highways,  passages,  or  other  public  places  in  the 
said  town  were  prohibited.  The  same  section  provided  *'  that,  if  any 
person  or  persons  shall  in  any  of  the  present  or  future  streets,  lanes, 
roads,  highways,  passages,  or  other  public  places  in  the  said  town, 
expose  for  sale  or  sell  any  horse,  ass,  pig,  sheep,  bull,  cow,  or  other 
beast  or  cattle  (except  in  any  public  market  or  fair),  or  hang  up, 
place,  or  expose  to  sale  the  carcase  of  any  calf,  sheep,  swine,  cattle,  or 
beast  or  any  part  or  parts  thereof,  or  any  goods,  wares,  or  merchandise 
whatsoever,  or  any  fruit,  vegetables,  or  garden  stuff,  or  other  matter 
or  thing,  in  or  upon  or  so  as  to  project  over  or  upon  any  footway  or 
carriage-way,  or  beyond  the  line  of  or  on  the  outside  of  the  window 
or  windows  of  the  house  or  shop  at  which  the  same  shall  be  so  hung 
up  or  placed  or  exposed  to  sale,  or  so  as  to  obstruct  or  incommode 
the  passage  of  any  person  or  carriage," — any  person  so  oiBEending  was 
renaered  subject  to  a  penalty  not  exceeding  5/. 

Section  63  of  the  same  act,  which  is  not  repealed,  is  as  follows : — 
"Provided  always  and  be  it  further  enacted,  that  no  person  shall  be 
subject  to  any  penalty  by  virtue  of  this  act  for  placing  or  setting  any 
stalls  or  standings,  or  any  wagons,  carts,  or  other  carriages,  in  which 
any  provisions,  goods,  wares,  merchandises,  articles,  or  things  shall 
have  been  brought  and  be  offered  for  sale,  or  exposing  to  sale  any 
such  provisions,  articles,  or  things,  so  as  that  such  w.agons,  carts,  or 
other  carriages,  stalls,  or  standings,  articles,  or  things  be  placed  in 
such  part  of  the  said  streets,  ^lanes,  roads,  passages,  or  public  r«oAft 
places  as  shall  be  appointed  for  that  purpose  by  the  said  com-  ^ 
missioners,  with  the  consent  of  the  owner  or  owners  of  the  fairs  and 
markets  held  at,  within,  or  for  the  said  town  of  Barnsley  for  the  time 
being,  or  his  or  their  authorized  agent,  in  writing;  due  care  being 
taken  in  all  the  aforesaid  cases  to  impede  or  obstruct  as  little  as  pos- 
sible the  public  streets,  lanes,  roads,  highways,  passages,  and  places 
within  the  said  town." 

Section  64,  which  is  also  unrepealed,  is  as  follows: — "Provided 
also,  and  be  it  further  enacted,  that  no  person  shall  be  subject  to  any 
penalty  by  virtue  of  this  act  for  placing  or  setting  any  stalls  or  stand- 
mgSy  or  exposing  to  sale  any  provisions,  goods,  wares,  merchandises, 
or  other  articles  or  things  whatsoever  in  such  parts  of  the  several 
streets,  lanes,  passages,  and  public  places  within  the  said  town  as 


266  SAVAGE,  App.,  BROOK,  Rksp.    M.  T.  1868. 

shall  have  been  heretofore  used  for  that  purpose,  at  the  times  of  the 
usual  fairs  and  markets  within  the  said  town ;  due  care  being  taken 
to  impede  as  little  as  possible  the  public  passage  along  the  same." 

Section  74,  which  is  also  unrepealed,  enacts, — "  that  the  said  com- 
missioners shall  or  may,  and  tbej  are  hereby  authorized  and  em- 
powered, at  any  time  or  times,  by  and  with  the  consent  of  a  majority 
of  the  inhabitants  of  the  said  town  of  Barnsley  rated  to  the  rates  and 
assessments  for  carrying  this  act  into  execution,  assembled  in  vestry 
in  pursuance  of  a  notice  setting  forth  the  purport  and  intent  of  such 
meeting,  and  published  in  the  several  churches  in  the  said  town  at 
least  ten  days  before  the  day  of  meeting,  to  contract  and  agree  with 
the  owner  or  owners  of,  and  any  trustees,  parties,  or  persons  interested 
in  any  other  messuages,  buildings,  lands,  grounds,  tenements,  pick- 
ages,  stallages,  market  and  fair  rents,  tolls,  dues,  duties,  free  customs, 
♦2671  P'*^^^^'  advantages,  and  rights  *belonging,  due,  or  in  anywise 
-"  appertaining  to  the  owner  or  owners  of  the  fairs  and  markets 
within  the  said  town  of  Barnsley  for  the  time  being,  or  hereditaments 
whatsoever,  situate  within  the  said  town,  for  the  absolute  purchase 
thereof,  or  of  any  part  or  parts  thereof,  which  the  said  commissioners 
shall  think  proper  and  necessary  to  be  purchased  for  the  purposes  of 
this  act,  at  or  for  such  price  as  shall  be  mutually  agreed  upon  for  the 
same." 

And  section  142,  which  is  also  unrepealed,  provides  and  enacts, — 
*^  that  nothing  in  this  act  contained  shall  (except  so  far  as  authority  is 
expressly  given  by  this  act)  extend,  or  be  construed  or  deemed  or 
taken  to  extend,  to  affect,  extinguish,  defeat,  abridge,  impeach,  annul, 
prejudice,  or  destroy  the  right,  title,  or  interest  of  the  most  noble 
George  William  Frederick,  Duke  of  Leeds,  lord*  of  the  manor  of 
Barnsley,  or  the  lord  of  the  manor  of  Barnsley  for  the  time  being,  of, 
in,  or  to  the  seignories,  rights,  royalties,  charters,  franchises,  jurisdic- 
tions, rents,  services,  liberties,  privileges,  powers,  and  authorities 
appendant,  appurtenant,  incident,  or  belonging  to  the  said  manor  of 
Barnsley,  or  to  any  rents,  tolls,  pickage,  stallage,  free  customs,  dues, 
duties,  profits,  or  advantages  belonging,  due,  or  in  anywise  appertain- 
ing to  the  said  Duke  of  Leeds,  owner  of  the  fairs  and  markets  within 
the  said  town  of  Barnsley,  or  the  owner  or  owners  of  such  fairs  and 
markets  for  the  .time  bein^ ;  but  that  the  said  Duke  of  Leeds,  lord  of 
the  said  manor,  and  the  lord  of  the  said  manor  for  the  time  being, 
shall  (except  as  in  this  act  expressly  excepted)  have,  hold,  use,  ex:er- 
else,  take,  and  enjoy  all  and  every  the  seignories,  rights,  royalties, 
charters,  franchises,  pre-eminences,  jurisdictions,  rents,  services,  pow- 
ers, authorities,  liberties,  privileges,  advantages,  and  emoluments 
whatsoever  to  the  said  manor  belonging  or  incident,  appendant^ 
*2681  ^I?P^r^°^°*»  ^^  usually  *exercised,  holden,  or  enjoyed  there- 
-I  with :  and  the  said  DuKe  of  Leeds,  owner  of  the  said  fairs  and 
markets,  and  the  owner  and  owners  of  the  said  fairs  and  markets  for 
the  time  being,  shall  and  may  demand,  exact,  take,  and  enjoy  all 
such  rents,  tolls,  pickage,  stallage,  free  customs,  dues,  duties,  profits,  and 
advantages,  with  all  powers  and  remedies  for  enforcing  payment 
thereof,  in  such  and  the  like  manner  and  as  fully  and  beneficially  to 
all  intents  and  purposes  as  if  this  act  had  not  been  passed." 

The  Duke  of  Leeds  was  at  the  time  of  the  passing  of  this  act  the 


COMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  S.)        268 

lord  of  the  manor  of  Barnaley,  and  the  owner  of  the  markets  and 
fairs  in  the  town  of  Barnsley  which  had  been  customarily  held  in 
parts  within  that  town,  with  the  pickages,  stallages,  market  rents,  and 
tolls  thereof,  and  of  three  pieces  of  land,  one  called  the  Church  Field 
or  Michaelmas-Fair  Field,  in  which  the  Barnsley  October  fair  had 
usually  been  held, — the  Market  Hill^ — and  the  May-Day  Green, 
where  fairs  had  always  been  held  in  February  and  May. 

By  an  ancient  charter,  dated  1249,  the  right  to  hold  a  market  in 
the  town  of  Barnsley  every  week,  on  Wednesday,  was  granted  to  the 
priors  and  convent  of  Pontefract;  and  a  market  for  the  sale  of 
butchers'  meat  and  other  marketable  commodities  has  been  always 
held  on  the  Market  Hill  during  the  day-time  on  Wednesday ;  and  a  like 
market  was  also  holden  there  on  Saturday  evenings,  until  the  butch- 
ers commenced  to  sell  their  meat  on  Saturday  upon  the  May-Day 
Green.  They  so  commenced  more  than  thirty  years  before  the  com- 
mencement of  these  proceedings ;  and  since  then,  without  interrup. 
tion,  the  sale  of  butchers'  meat  and  several  other  marketable  commo- 
dities upon  stalls  or  standings  has  taken  place  on  Saturdays  upon  the 
May  Day  Green ;  and  on  Wednesdays  also  the  market  generally  has 
been  held,  not  only  on  the  May -Day  Green,  but  also  on  the  Market 
Hill. 

•The  butchers  placed  stalls  on  the  May-Day  Green  for  the  r*ogQ 
purpose  aforesaid;   and  pipes  were  laid  for  supplying  gas,  '■ 
and  the  same  was  supplied  to  and  paid  for  by  the  stall-owners. 

Some  of  the  butcners  have  paid,  during  the  past  thirty  years, 
although  irregularly,  to  lessees  and  others,  stallage  rent  for  standing 
upon  the  May -Day  Green :  but  the  right  to  collect  this  stallage  has 
always  been  disputed. 

The  commissioners  appointed  under  the  said  act  of  3  G.  4,  c.  xxv., 
did  not  purchase  the  rights  of  the  lord,  but  purchased  the  piece  of 
land  called  the  Market  Hill ;  and  in  other  respects  continued  to  exer- 
cise their  powers  under  the  act  until  the  year  1853,  when  the  general 
board  of  nealth  made  a  provisional  order,  which  was  confirmed  by 
the  statute  16  &  17  Vict.  o.  24  (called  "The  Public  Health  Supple- 
mental  Act,  1853,  No.  1"),  so  far  as  the  same  was  authorized  by  the 
Public  Health  Act  By  this  order  and  statute  a  local  board  of  health 
was  constituted  in  the  town  of  Barnsley :  and  it  was  thereby  provided 
by  the  respective  sections  next  set  out,  as  follows : — 

"7.  The  parts  of  the  said  local  act  specified  in  the  schedule  to  this 
order  shall  oe  repealed,  except  in  so  far  as  the  same  repeal  any  other 
act  or  acts  of  parliament. 

''8.  All  the  powers  of  the  commissioners  under  the  said  local  act, 
and  those  of  their  officers  and  servants^  shall  wholly  cease. 

"9.  Such  of  the  said  powers  as  are  granted  by  the  unrepealed  parts 
of  the  said  local  act,  shall,  so  far  as  the  same  are  not  repugnant  to  or 
inconsistent  with  the  said  Public  Health  Act  or  this  order,  or  any 
by-law  lawfully  mad^  under  the  said  Public  Health  Act,  be  t^a^s- 
ferred  to  the  said  local  board  of  hea]th  and  the  officers  of  the  said 
local  board,  and  stif^ll  be  ^exercised  in  the  same  manner  as  if  r*270 
such  powers  bad  been  granted  by  the  said  Public  Health  Act.    ^ 

''}0.  The  said  local  board  of  health  shall  be  the  commissioners  tqx 
executing  the  unrepealed  parts  of  the  said  local  act. 


270  SAVAGE,  App.,  BROOK,  Resp,    M.  T.  1863. 

"11.  The  provisions  (except  as  aforesaid^  of  the  said  Public  Health 
Act  may,  whenever  practicable,  be  appliea  to  anything  which  shall 
arise  under  the  unrepealed  parts  of  the  said  local  act ;  and  such  unre- 
pealed parts  shall  be  incorporated  with  the  said  Public  Health  Act, 
and  shall  extend  to  the  whole  of  the  said  township. 

'*  12.  All  property  and  estate  whatsoever  of  the  comniissioners 
nnder  the  said  local  act  shall  be  transferred  to  the  said  local  board  of 
health,  and  shall  be  held  by  them  upon  the  same  trusts  and  for  the 
same  purposes  as  by  such  commissioners." 

And  it  was  also  provided  that — ''17.  In  the  event  of  the  purchase 
by  the  said  local  board,  acting  as  commissioners  in  the  execution  of 
the  unrepealed  parts  of  the  said  local  act,  of  market  and  fair  rights, 
and  other  matters  and  things  pertaining  thereto,  under  the  74th  sec- 
tion of  the  said  local  act,  the  sections  of  the  Markets  and  Fairs 
Clauses  Act,  1847, — with  respect  to  the  construction  of  the  market  or 
fair  and  the  works  connected  therewith,  except  so  much  thereof  as 
relates  to  lands  taken  compulsorily, — and  the  holding  of  the  market 
or  fair,  and  the  protection  thereof, — and  slaughter-houses, — ^and  weigh- 
ing goods  and  carts, — and  stallages,  rents,  and  tolls, — and  by-laws, — 
shall  be  incorporated  with  so  much  of  the  said  local  act  as  remains 
unrepealed  by  this  order,  and  with  the  said  Public  Health  Act  as 
applied  to  the  said  township  by  this  order,  and  any  act  of  parliament 
confirming  the  same:  and  the  expression  *the  special  act,'  used  in  the 
*2711  ^^^^  sections,  shall  be  construed  to  mean  the  'unrepealed  parts 
■•  of  the  said  local  act  and  the  said  Public  Health  Act  so  applied  ; 
and  the  expression  '  limits  of  the  special  act,'  used  in  the  same  sections, 
shall  be  construed  to  mean  the  district  constituted  by  this  order ;  and 
the  expression  *  the  commissioners,'  used  in  the  said  sections,  shall 
mean  the  said  local  board." 

The  schedule  to  the  said  provisional  order  was  as  follows: — "The 
parts  of  the  local  act  referred  to  in  this  order  to  be  repealed,  are  as 
follows,  that  is  to  say, — the  sections  numbered  respectively,  in  the 
copies  of  the  said  act  printed  by  the  Queen's  printers,  1  to  84,  37  to 
89,  43  to  60,  all  inclusive;  61,  62,  65  to  73,  75  to  92,  94  to  96,  and 
99  to  141,  all  inclusive;  and  so  much  of  any  unrepealed  part  of  the 
said  act  as  fixes  the  amount  of  any  penalty  for  any  ofience  under  the 
said  act,  wherever  the  penalty  for  such  offence  is  fixed  by  the  Public 
Health  Act  or  any  act  hereby  incorporated  therewith,  or  by  any 
by-law  of  the  local  board  of  health,  at  an  amount  other  than  that  fixed 
by  the  said  local  act." 

Under  the  heading  in  the  Markets  and  Fairs  Clauses  Act,  1847, 
which  has  reference  to  the  construction  of  the  market  or  fair,  there  is 
a  clause  (10)  of  that  act  which  is  in  the  following  words, — "  Subject 
to  the  provisions  in  this  and  the  special  act,  and  any  act  incorporated 
therewith,  the  undertakers  for  the  purpose  of  constructing  a  place  for 
holding  the  market  or  fair  may  execute  any  of  the  following  works, 
that  is  to  say, — 

"They  may  enter  upon  any  lands  described  in  the  special  act  or  the 
schedule  thereto,  or  other  lands  purchased  by  them  or  belonging  to 
them,  and  set  out  such  parts  as  they  think  necessary  for  the  purposes 
of  the  market  or  fair,  and  thereupon  from  time  to  time  build  and  main- 
tain  such  market-places  or  places  for  fairs,  and  such  stalls,  sheds,  pens. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        271 

and  other  buildings  or  *conveniences  for  the  use  of  the  persons  r#o7o 
frequenting  the  market  or  fair,  and  for  weighing  and  measuring  »■ 
goods  sold  in  the  market  or  fair,  and  for  weighing  carts,  as  thej  may 
think  necessary :" 

'*  They  may  from  time  to  time  on  such  lands  as  aforesaid  make  and 
maintain  all  such  roads  and  approaches  as  they  may  think  necessary 
for  the  convenient  use  of  the  persons  resorting  to  the  market  or 
fair." 

The  local  board  was  duly  elected,  and  has  since  exercised  the 
functions  conferred  upon  them  by  the  Public  Health  and  Local  Gov- 
ernment Acts;  and  the  property  belonging  to  the  commissioners 
became  vested  in  them.  Among  other  property  was  the  piece  of 
land,  containing  about  990  yards,  above  referred  to,  and  termed  the 
Market  Hill. 

In  the  month  of  July,  1860,  a  resolution  was  passed  at  a  meeting 
of  owners  and  rate-payers  of  the  district  of  the  township  of  Bamsley 
(being  the  district  of  the  said  local  board),  that  the  local  board  should 
have  power  to  do  the  following  things,  or  any  of  them,  within  their 
district, — 

"To  provide  a  market-place  and  construct  a  market-house  and 
other  conveniences  for  the  purpose  of  holding  markets  in  the  said 
district : 

"To  provide  houses  and  places  for  weighing  carts: 

"To  make  convenient  approaches  to  such  market: 

"  To  provide  all  such  matters  and  things  as  may  be  necessary  for 
the  convenient  use  of  such  market : 

"To  purchase  or  take  on  lease  land,  and  public  or  private  rights  in 
any  market,  and  tolls,  in  the  said  district,  and  particularly  the  right 
to  certain  land  and  appurtenances  and  to  certain  fares,  markets,  lolls, 
and  similar  franchises,  belonging  to  the  trustees  of  the  late  Duke  of 
Leeds,  for  any  of  the  foregoing  purposes ;  and 

''  To  take  stallages,  rents,  and  tolls  in  respect  of  the  use  by  any 
person  of  such  market-house."  r*273 

•This  resolution  was  carried  upon  a  poll.  *■ 

The  local  board  thereupon  completed  an  arrangement  which  thev  had 
been  negotiating  for  the  purchase  of  the  rights  to  the  markets  ana  fairs 
belonging  to  the  Duke  of  Leeds :  and  by  a  conveyance  dated  the  12th 
of  June,  1861,  between  the  trustees  of  the  will  of  the  late  Duke  of  Leeds 
and  the  local  board  of  health  of  Barnsley,  which  was  executed  with  the 
sanction  of  the  Court  of  Chancery,  the  said  trustees,  in  consideration 
of  the  sum  of  27002.  paid  to  them  by  the  said  local  board,  duly  conveyed 
to  the  said  board :  *'  Firstly,  all  those  the  markets  and  fairs,  and  right  and 
privilege  of  holding  markets  and  fairs  within  the  township  of  Barnsley 
m  the  parts  and  places  where  such  fairs  and  markets  have  heretofore 
been  customarily  held,  and  in  any  other  public  parts  and  places  within 
the  said  town  wherein  the  same  may  be  legally  held,  together  with  all 
pickages,  stallages,  market  and  fair  rents,  tolls,  duties,  free  customs, 
profits,  advantages,  and  rights  belonging,  due,  or  appurtenant  to  such 
fairs  and  markets,  or  to  the  owner  or  owners  thereof,  within  the  town 
of  Barnsley,  and  together  with  the  free  use  and  enjoyment  of  all  or 
any  of  the  streets,  roads,  and  ways  within  the  said  town  for  the  pur* 
pose  of  holding  such  markets  and  fairs  therein,  and  of  collecting  and 


273  SAVAGE,  App.,  BROOK,  Resp.    M.  T.  1863. 

enforcing  and  compelling  payment  of  all  pickages,  stallages,  market 
and  fair  rents,  tolls,  duties,  and  profits  for  the  time  being  payable  or 
demandable  in  such  markets  and  fairs,  or  any  of  them ;  and  all  other 
franchises,  rights,  privileges,  and  liberties  in  or  about  or  belonging  to 
such  right  of  holding  fairs  and  markets,  so  far  as  the  said  Viscount 
Nevill,  Frederick  Acclom  Milbank,  Thomas  Fairfax,  Sir  James  Fer- 
guson, and  Joseph  Henry  Hudson,  as  trustees  of  the  will  of  the  said 
William  Frederick,  late  Duke  of  Leeds,  can  grant  the  same, — Secondly, 
*2741  ^^'  ^^^^  *plot,  piece,  or  parcel  of  land  situate  in  the  said  town- 
-1  ship  of  Barnsley,  called  or  known  by  the  name  of  the  Church 
Field  or  Michaelmas-Fair  Field,  containing  four  acres,  one  rood,  and 
twenty-two  perches,  or  thereabouts  (subject  to  all  rights  of  road  and 
other  rights  affecting  the  same,  and  particularly  to  a  certain  right  of 
road  nine  feet  wide  from  a  street  called  St.  Mary's  Gate  to  Fair-Field 
House,  formerly  sold  by  the  said  Duke  of  Leeds),  and  which  said 
piece  or  parcel  of  land  is  more  particularly  described  upon  the  map 
or  plan  endorsed  on  the  third  skin  of  these  presents,  and  is  therein 
coloured  green, — Thirdly,  all  that  waste  or  unenclosed  land  or  ground 
situate  in  the  township  of  Barnsley  aforesaid,  called  or  known  by  the 
name  of  the  May-Day  Green,  and  shown  upon  the  said  map  or  plan, 
together  with  all  and  all  manner  of  lawful  profits,  commodities, 
privileges,  and  advantages  whatsoever  coming,  arising,  renewing, 
increasing,  or  payable  for  or  in  respect  of  all  and  every  the  said  fairs 
and  markets  and  every  of  them  hereafter  to  be  holden  and  kept  under 
or  by  virtue  of  these  presents  for  the  said  town  of  Barnsley,  within 
the  bounds,  limits,  and  precincts  of  the  same, — except  and  always 
reserving,  nevertheless,  unto  the  said  trustees,  all  coal,  ironstone,  lead, 
and  other  minerals  lying  and  being  within  and  under  the  said  pieces  or 
parcels  of  land  and  hereditaments,  with  powers  of  winning,  working, 
and  getting  away  the  same,  as  they  are  entitled  to  under  the  Barnsley 
Enclosure  Act,  To  have  and  to  hold  the  said  markets  and  fairs,  and 
right  and  privilege  of  holding  markets  and  fairs  within  the  said  town, 
together  with  all  pickages,  stallages,  market  and  fair  rents,  tolls,  dues, 
duties,  free  customs,  profits,  advantages,  and  rights,  pieces  or  parcels 
of  land  and  waste  or  unenclosed  land  firstly,  secondly,  and  thirdly 
hereinbefore  particularly  described,  and  expressed  to  be  hereby 
4^2^51  granted,  and  other  *the  premises  hereinbefore  expressed  to  be 

'  -'  hereby  granted  and  released,  or  otherwise  assured,  or  intended 
so  to  be,  un{o  and  to  the  use  of  the  said  local  board  of  health,  their 
successors  and  assigns,  for  ever." 

As  soon  as  the  conveyance  was  executed  and  the  local  board  ob- 
tained possession,  they  proceeded  to  frame  by-laws  and  to  settle  tables 
of  tolls  for  the  markets  and  fairs.  The  by-laws  purported  to  be  made 
and  ordained  by  the  local  board  of  health  for  the  district  of  the  town- 
ship of  Barnsley,  in  the  county  of  York,  for  the  better  regulation  of 
the  markets  and  fairs  and  market-places  for  the  sale  of  cattle,  animals, 
and  provisions,  and  all  other  marketable  commodities  within  the  said 
district,  pursuant  to  the  powers  and  prorisions  contained  in  Tlie  Pnb- 
lio  Health  Act,  1848,  The  Public  Health  Supplemental  Act,  185S, 
(No.  1),  and  The  Local  Gorernment  Act,  1858. 

The  notices  required  by  the  Public  Health  Act  were  duly  given, 
and  the  by-laws  were  submitted  on  the  8th  of  October  1862  to  Her 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        275 

Majeafrf 's  principal  secretary  of  state  for  the  home  department,  who 
on  the  27th  of  November,  1862,  returned  the  same  allowed.  Public 
notice  was  given  that  such  by-laws  and  table  of  tolls  had  been  duly 
approved  by  such  secretary  of  state,  and  that  the  markets  and  fairs 
would  be  opened  on  the  11th  of  April  last  under  the  provisions  of  the 
Local  Government  Act,  1858,  ana  that  after  that  day  the  by-laws 
would  be  strictly  enforced. 

The  certificate  of  two  justices  required  by  the  10  &  11  Vict.  c.  84, 
8.  32  (The  Markets  and  Fairs  Clauses  Act,  1847),  was  also  obtained, 
certifying  that  the  Corn  Exchange  or  Market  House,  Market- Hill, 
May-Day  Green,  Church  Field,  and  other  places  to  be  used  for  fairs 
within  the  said  district,  were  properly  completed  and  fit  for  public  use. 

♦The  8d  and  4th  by-laws  were  as  follows : —  P276 

"Appropriation  of  the  open  market.  Market  Hill.  L 

"3.  The  open  market,  situate  on  Market  Hill,  in  Barnsley  aforesaid, 
shall  be  appropriated  as  a  market  for  the  sale  therein,  on  Wednesdays, 
of  butchers'  meat,  bacon,  pork,  cheese,  eggs,  and  butter  in  the  firkin 
or  laid  down,  flower  roots,  plants,  trees,  shrubs,  calicoes,  cloth,  linen, 
mercery,  articles  of  dress,  provisions,  coopers'  ware,  pastry,  spices, 
confectionery,  books,  nuts,  brooms,  besoms,  and  hardware;  and  on 
Saturdays  the  same  shall  be  exclusively  appropriated  for  the  sale 
therein  of  butchers'  meat,  bacon,  pork,  cheese,  eggs,  and  butter  in  the: 
firkin  or  laid  down." 

"  Appropriation  of  the  open  market,  May-Day  Green. 

"4.  The  open  market  situate  on  May-Day  Green,  in  Barnsley  afore- 
said, shall  be  appropriated  for  a  market  for  the  sale  therein  of  horses, 
cattle  of  all  kinds,  calves,  sheep,  pigs,  geese,  fruit,  vegetables  of  all 
sorts,  fish,  earthenware,  potters*  ware,  glasses,  hay,  straw,  grass,  and 
vetches,  medical  wares,  old  metal,  images,  pictures,  cutlery,  hardware 
and  smallware,  clothing,  boots,  and  shoes :  Provided,  however,  that 
these  several  appropriations  shall  be  open  to  alterations  and  additions 
at  any  time  hereafter,  as  tbe  said  local  board  of  health  shall  find 
requisite  or  convenient." 

The  6th  by-law  was  as  follows: — • 

*'  As  to  articles  offered  for  sale. 

'*No  article  shall  be  offered  for  sale  or  sold  in  any  market,  or  kept 
or  brought  into  the  same  for  sale,  other  than  such  for  which  the  said 
market  or  part  of  anv  such  market  shall  have  been  appropriated  as 
hereinbefore  set  forth.  Every  person  ofiending  against  this  by-law 
shall  forfeit  and  pay  for  the  first  offence  the  sum  of  ds,,  for  a  second 
offence  the  sum  of  lOtf.,  and  for  every  offence  subsequent  to  a  second 
offence  the  sum  of  20«." 

*    *The  12th  and  13th  by-laws  are  as  follows : —  r*27T 

"  Stalls  to  be  placed  on  the  parts  appropriated.  ^ 

"  12.  No  atall,  bench,  cart,  hand-cart,  wheelbarrow,  hamper,  basket, 
box,  er  tab,  or  other  article,  shalPbe  placed  otherwise  than  as  and 
where  the  inspector  of  the  market  shall  direct ;  and  the  several  arti- 
cles brought  into  the  market  shall  be  sold  and  placed  and  exposed  for 
sale  only  at  or  in  such  parts  of  the  market  as  shall  be  appropriated 
^  the  regulations  herembefore  specified  for  such  articles  respectively. 
Every  person  offending  against  this  by-law  shall  forfeit  and  pay  fojr 

0.  B.  K.  8.,  VOL.  XV.— 12 


277  SAVAGE,  Ape.,  BROOK,  Resp.    M.  T.  1863. 

tbe  first  offence  the  sum  of  28.  Qd.,  for  a  second  offence  the  snm^  6$^ 
and  for  any  offence  subsequent  to  a  second  offence,  the  sum  of  10^. 

"  13.  Provided  that  these  by-laws  shall  not  extend  or  be  deemed  or 
construed  to  extend  to  prohibit  any  person  from  exposing.or  offering 
for  sale  any  marketable  commodities  in  any  shop  or  warehouse  not 
being  in  one  of  the  said  markets,  or  in  his  or  her  dwelling-house,  oV 
to  subject  such  person  to  any  penalty  for  so  doing.'' 

The  following  table  of  tolls  is  appended  to  and  forms  part  of  the 
by-laws  made  by  the  local  board : — 

"  Barnsley  Local  Board  of  Health. 
**  Markets  and  Fairs. 

''  Stallages,  rents,  and  tolls  to  be  from  time  to  time  demanded  and 
taken  from  any  person  occupying  or  using  any  shop,  stand,  stall,  shed, 
apace  of  ground,  or  place  in  any  market-place  or  market-house  appro- 
priated by  the  said  local  board  of  health  for  the  holding  therein  of 
markets  and  fairs,  and  belonging  to  the  said  local  board  of  health,  or 
which  they  are  entitled  to  use,  or  bringing  therein  any  cattle,  animal, 
£Oods,  provisions,  articles,  or  things,  by  the  said  local  board  of  health 
:under  and  by  virtue  of  the  powers  and  provisions  contained  in  The 
♦5781  ^^^^^^  Health  Act,  1848,  *The  Public  Health  Supplemental 
J  Act,  1853,  (No.  1),  and  the  Local  Government  Act,  1858,  and 
4tgreed  to,  adopted,  and  made  by  the  said  local  board  of  health  at  a 
meeting  of  the  said  board  duly  convened  and  held  on  the  22d  of 
August,  1862. 

"  Market  and  Fair  Tolls.— Stalls. 

a,    d, 
"  From  the  occupier  of  each  butcher's  stall  on  Saturdays,  for  the  use  of 
the  party  taking  only,  including  gas,  water,  fixing,  removing,  and  eleana- 

iDg,  j>er  week     ^ 36 

**  From  the  occupier  of  each  butcher's  stall  on  Wednesdays  only  '  .        .16 

"  Ditto,  if  one  gas-light  be  provided  extra 0    6 

"  From  the  occupier  of  each  stall  for  the  sale  of  fish,  for  each  and  every 

«Dperficial  foot  thereof-: 

"If  taken  by  the  year 6    6 

"If  taken  by  the  half-year 3    6 

"  If  taken  by  the  quarter 19 

"If  otherwise  taken  or  occupied,  for  each  market-day  or  other  day  in 

the  week,  per  superficial  foot 0    0} 

*'  If  one  gas-light  be  provided  extra 0    6 

,    **  From  the  occupier  of  each  stall  or  article  used  as  such  for  vegetables 
jtfid  fruit  on  Wednesdavs  and  Saturdays  and  fair  days,  eight  feet  in  length 

ftikd  four  feet  in  breadth 0    9 

"  For  the  like  stalls,  when  used  on  any  other  day  in  the  week  .0    4} 

*^  Stalls  or  articles  used  as  such  of  greater  or  less  dimensions,  in  the  same 

proportion ;  if  one  gas-light  be  provided,  extra %      0     6 

'*^For  standaee  of  all  goods  sold  by  auction,  per  superficial  foot  of  the 

jjgroand  covered  by  the  eoods 0     1 

^*  For  standage  of  each  hawker's  cart  or  wagon,  per  day  .  .36 

The  markets  having  thus  been  opened,  and  the  by-laws  duly  made, 
allowed,  and  published,  as  above  stated,  a  person  named  Francis 
3rook,  of  Wakefield,  butcher,  on  Saturday,  the  6th  of  June  last, 
•*2791  *^^^  ^^^  *market-place  had  been  opened  to  public  use.  placed 
J  and  exposed  for  sale  certain  butchers'  meat  on  the  May-Day 
.Green,  not  being  the  place  appropriated  for  the  sale  of  butchera'.meat 
by  the  by-laws  above  referred  to,  and  continued  to  expose  the  same 
S^r  stie  notwithstanding  the  said  by-laws,  and  contrary  to  the  direc- 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        279 

tioi#of  tbe  local  board  of  health  through  their  officer,  namelj  the 
inspector  of  «the  markets. 

The  local  board  of  health  thereupon  caused  this  information  to  be 
laid  by  George  Savage,  the  inspector  of  the  markets,  before  the  jus- 
tices, for  a  penalty  for  a  breach  of  the  by-laws  above  set  forth ;  and, 
on  the  hearing,  the  defendant  contended  that  the  above  by-laws, — 
especially  the  fourth  and  sixth, — were  invalid  and  inoperative  against 
him,  on  the  following  grounds,  namely,  that  the  above-cited  64th 
section  of  the  local  act,  3  G.  4,  o.  xxv.,  not  having  been  repealed,  no 
person  was  liable  to  a  penalty  for  exposing  butchers'  meat  for  sale  in 
the  public  places  in  the  town  of  Barnsley  theretofore  used  for  that 
purpose ;  and  that  the  by-laws  prohibiting  the  sale  of  butchers'  meat 
on  the  May-Day  Green,  and  also  the  by-law  setting  apart  the  Market 
Hill  as  the  only  place  for  the  sale  of  butchers'  meat,  were  not  legal,  m 

For  the  informant,  it  was  contended  that  section  64  of  the  above- 
mentioned  local  act  only  referred  to  penalties  under  that  act,  and  had 
no  operation  in  reference  to  the  present  penalty,  which  was  incurred 
under  the  Public  Health  and  Local  Government  Acts,  for  violating  a 
by-law  made  by  the  local  board  of  health  for  the  purpose  of  regulat- 
ing the  use  of  the  markets  vested  in  them  by  their  purchase  from  the 
trustees  of  the  Duke  of  Leeds,  and  by  virtue  of  the  powers  contained 
in  clause  9  of  the  provisional  order  hereinbefore  mentioned,  and  in 
the  Markets  and  Fairs  Clauses  Act,  1847. 

*The  justices  were  of  opinion  that  the  argument  of  the  de-  r«280 
fendant  was  correct,  and  dismissed  the  information,  subject  to  *- 
the  opinion  of  this  court  upon  the  following  questions, — 

First,  whether,  in  consequence  of  the  64th  section  of  the  local  act, 
8  G.  4,  c.  XXV.,  being  unrepealed,  the  defendant  was  liable  to  a  pen- 
alty for  placing  and  exposing  butchers'  meat  for  sale  in  the  May-Day 
Green,  under  by-law  No.  12,— Secondly,  whether  the  by-law  num- 
bered 6  is  a  good  and  valid  by-law, — Thirdly,  whether  the  by-laws 
numbered  3  and  4  are  good  and  valid  by-laws. 

And  the  judgment  of  the  court  was  accordingly  required  upon 
these  questions ;  it  having  been  agreed  that  all  the  by-laws  made  by 
the  local  board,  and  the  whole  of  the  statute  3  G.  4,  o.  xxv.,  and  the 
conveyance  from  the  trustees  of  the  Duke  of  Leeds,  with  the  map  or 
plan  thereupon  endorsed,  not  set  out  in  the  case,  might  be  referred  to, 
if  requisite,  as  if  the  same  had  been  made  part  of  the  case. 

If  the  court  should  affirm  the  determination  of  the  justices,  the 
information  was  to  stand  dismissed ;  but,  if  they  should  reverse  it,  a 
conviction  for  the  penalty  of  25.  6d.  was  to  be  awarded  against  the 
defendant;  or  such  further  order  was  to  be  made  in  the  matter  as  to 
the  court  should  seem  fit. 

Jianisti/f  Q,  G.,  for  the  appellant,(a)  submitted  that  *it  was  r^oai 
competent  to  the  local  board  of  health  of  Barnsley,  so  soon  as  ^ 
tbev  had  become  owners  of  the  markets  there  by  purchase  from  the 
Duke  of  Leeds,  and  had  provided  proper  places  for  holding  markets,—* 

(•)  tiM  polaU  narktd  for  Mrgnmenft  on  the  part  of  the  ftppoUaiik  woro  «•  follows  :— 

«  L  That  the  MTtral  by-Uwi  Mft  ovt  la  the  eaie  aro  Tilid,  and  that  for  Vfoaobaa  of  tbam  tkf 

yrtieribod  poaaltioi  maj  bo  oaforoed ; 

«S.  That  tho  64tb  Motion  of  tho  8  Q.  4,  e.  zzt.,  only  rofon  to  ponaltioa  irapoiod  undor  that 

■«^  aad  haa  no  nforanoo  or  oporatlon  at  to  ponaltioa  laovrrtd  bj  broaohoa  of  bj-lawa  auida  kj. 

Iht  looal  board  of  hoalth  ate  tho  airramitaaoif  Hatid  ia  tho  MM." 


281  SAVAGE,  App.,  BROOK,  Resp.    M.  T.  1863. 

whicli  were  not  neoessarilj  confined  to  Any  particular  spot,  but  migbt 
be  erected  in  any  convenient  spot  within  the  borough,(a) — pursuant 
to  the  50th  section  of  the  Local  Grovernment  Act,  1858  (21  k  22  Vict. 
c.  98),  to  make  by-laws  for  their  regulation,  and  to  appoint^  as  they 
had  done  here,  certain  places  for  the  exclusive  sale  of  the  several  arti- 
cles to  be  exposed  therein ;  that,  what  the  local  board  did  was  no 
interference  with  any  prescriptive  right  of  the  inhabitants  of  the 
borough ;  and  that  all  that  was  meant  by  the  63d  and  64th  sections 
of  the  local  act  of  3  G.  4,  c.  xxv.,  was,  that  parties  should  not  be  held 
liable  to  penalties  imposed  by  Oiat  act  for  nuisances  committed  in  the 
public  streets  bv  the  exposure  for  sale  of  their  goods  in  places  where 
the  markets  had  theretofore  usually  been  held. 

flayes,  Serjt.  (with  whom  was  Berea/ord),  for  the  respondent.(ft) — 
'*'2821  ^^^^  ^^  ^^^  ^^^®  ^^  making  these  '^by-laws  in  1862,  there  had 

^  been  two  markets  held  in  Barnsley,  the  one  at  Market  Hill,  the 
other  at  May-Day  Q-reen.  The  by-laws  which  the  local  board  of 
health  have  made,  are  not  for  regulating  these  markets,  but  for 
abolishing  one  of  them,  viz.  the  May-Day  Green  market,  as  respects 
the  sale  of  butchers'  meat  there, — which  has  been  held  since  the  year 
1249,  without  any  interruption,  so  far  as  appears  from  the  case. 
[Btles,  J. — The  whole  evidence  of  title  is  that  contained  in  the  para- 
graph of  the  case  at  p.  268,  where  it  is  stated  that  "a  market  for  the 
sale  of  butchers'  meat  and  other  marketable  commodities  has  been 
always  held  on  the  Market  Hill  during  the  day-time  on  Wednesday; 
and  a  like  market  was  also  holden  there  on  Saturday  evenings  until 
the  butchers  commenced  to  sell  their  meat  on  Saturday  upon  the  May- 
Day  Green.  They  so  commenced  more  than  thirty  years  b^ore  the  com- 
mencement of  these  proceedings ;  and  since  then,  without  interruption, 
the  sale  of  batchers'  meat  and  several  other  marketable  commodities 
upon  stalls  or  standings  has  taken  place  on  Saturdays  upon  the  May- 
Day  Green:  and  on  Wednesday  also  the  market  generally  has  been 
held,  not  only  on  the  May-Day  Green,  but  also  on  the  Market  Hill."] 
The  64th  section  of  the  3  G.  4,  c.  xxv.,  which  is  unrepealed,  and 
which  forms  part  of  the  special  legislation  for  the  township  of  Barns- 
ley,  expressly  provides  that  "  no  person  shall  be  subject  to  any  pen- 
alty by  virtue  of  this  act  for  placing  or  setting  any  stalls  or  standings, 
*2881  ^^  '^exposing  to  sale  any  provisions,  goods,  wares,  merchan- 

^  dises,  or  other  articles  or  things  whatsoever^  in  such  parts  of 

(a)  Sm  EULi  v.  The  Kftyor,  4e.,  of  BridgBorth,  utd,  p.  62. 

{h)  The  point!  marked  for  argument  on  the  part  of  the  respondent  were  ai  ^oBovi  :— 

**  1.  That,  under  the  oiroumataooes  stated,  the  respondent  cannot  be  eompeUed  to  remove  his 
•tsU  ftom  Maj-Day  Areen  to  Market  HiU,  and  thereby  make  himself  liable  to  p9y  tolls  or 
stallage  : 

"  S.  That  the  respondent  had  acquired  a  prescrlptiTe  right  to  ezpoae  fi)r«a]»1>«tohflr^s  meat 
on  Kay-Day  Green,  and  snch  right  was  not  aifected  by  the  l^4aws : 

'<8.  That  the  64th  section  of  the  local  act  8  G.  4,  c  zxv.,  Uing  unrepealed  and  virtuaUy 
^^-•nactod  by  the  special  uot,  the  tuspondent  is  thereby  protected  from  the  peaaltief  «ough4 1« 
ha  impofud: 

<«i.  That  the  biy-laws  nnmUnd  3  and  4  are  invaUd,  as  being  i^iw&aftt  4o  tha«iaM  H* 
faction,  which  Is  IncorpoMted  wiUi  €he  special  act  «nder  the  42d  Metion^f  Ihe  Jfailtfto  and 
VMrsOfamsM  Act,  10  Vlat.  c  14 : 

«  6.  That  by-Uw  No.  6  is  inralid,  nadar  the  4Sd  lactioA  of  4hat  ao({ 

^  6.  Hhnt  the  toUi  and  pn^menU  aought  to  bo  wltaood  ^guaai  tho.|is^^<adwil  ModmnU^ 
uhto  tfan  WAi  Mttlon  ofthM  aA.^ 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        28* 

tlae  several  streets,  &c.,  and  public  places  within  the  said  town  as 
shall  haye  been  heretofore  used  for  that  purpose  at  the  times  of  the 
UBual/airs  and  markets  within  the  said  town,  due  care  being  taken  to 
impede  as  little  as  possible  the  public  passage  along  the  same.'*  This 
is  an  attempt  to  impose  upon  the  respondent  a  penalty  for  an  act 
which  is  expressly  made  lawful  by  that  clause.  [Bylks,  J. — That  act 
passed  forty  years  ago,  and  consequently  before  the  commencement 
of  the  thirty  years'  user  upon  which  you  rely.]  'It  is  to  be  read  as 
if  it  were  re-enacted  in  the  Local  Government  Act,  1858.  [Byles, 
J. — Still,  the  word  "  heretofore"  in  s.  64  of  the  local  act  refers  to  a 
time  prior  to  1823.]  That  would  be  giving  it  no  operation  at  all.  It 
is  submitted  that  the  words  ''  by  virtue  of  this  act,"  in  s.  64,  must  be 
taken  to  mean,  by  virtue  of  the  special  legislation  based  upon  the 
order  of  the  general  board  of  health,  in  1853,"  confirmed  and  made 
of  equal  force  with  an  act  of  parliament  by  the  16  &  17  Vict.  c.  24.(a) 
It  incorporates  *the  unrepealed  provisions  of  the  local  act,  and  r^og^ 
makes  them  speak  as  from  the  date  of  the  later  act.  The  42d  ^ 
section  of  the  Markets  and  Fairs  Clauses  Act,  1847,  was  never  in- 
tended to  confer  so  extensive  a  power  on  the  local  board  as  they  seek 
to  exercise  upon  the  present  occasion.  It  is  not  the  common-law 
power  to  change  the  locality  of  the  market  which  they  profess  to  act 
upon.  Their  power  is,  to.  regulate,  not  to  destroy.  It  was  not  the 
intention  of  the  legislature  that  legal  vested  rights  should  be  inter- 
fered with  by  these  by-laws. 

Manisiyy  in  reply.— The  28th  section  of  the  Towns  Police  Clauses 
Act,  1847  (10  &  11  Vict.  c.  89),  comes  in  lieu  of  the  nuisance  preven- 
tion clause  (s.  62)  of  the  3  G.  4,  c.  xxv.  The  local  board  of  health 
had  ample  power  to  make  by-laws  for  regulating  the  markets  within 
the  township  of  Barnslev,  and  to  impose  penalties  for  any  breach  of 
those  by-laws.  It  may  be  conceded  that  the  board  had  no  right  to 
exclude  the  respondent  from  the  market ;  but  they  had  a  right  to 
make  regulations  as  to  the  part  of  the  market  to  which  he  and  the 
rest  of  the  persons  carrying  on  his  trade  should  go.  Market  Hill 
was  the  only  legal  market  for  the  sale  of  butchers'  meat ;  though  by 
encroachment  butchers  had  for  a  certain  period  been  accustomed  to 
expose  meat  for  sale  on  May-Day  Green  also.  There  is,  howeverj 
clearly  no  prescriptive  right  which  is  interfered  with  by  the  by-laws 
in  question. 

Erlb,  C.  J. — I  am  of  opinion  that  the  by-laws  in  question  are  good, 
and  that  a  conviction  in  this  case  would  have  been  proper.  The  ap- 
plication of  the  Public  Health  Act,  1848,  to  the  town  of  Barnsley 

(d)  Saet  17  of  the  Bftrniley  order,  in  the  lohedalo  to  tb&t  aot,  providM,  that,  "  in  the  eyenl 
of  the  parobai«  by  the  said  local  board  aotiog  as  oommiitioneri  in  the  ozeontion  of  the  unre- 
pealed parti  of  the  said  local  aot  (3  G.  4,  o.  zzt.),  of  market  and  fkir  rights,  and  other  matters 
and  things  pertaining  thereto  nnder  the  74th  section  of  the  said  local  aot, — the  sections  of  the 
Markets  and  Fairs  Clanaes  Act,  1847  (10  A  11  Vict.  c.  14),  with  respect  to  the  construction  of 
the  market  or  fkir  and  the  works  connected  therewith,  except  ao  much  thereof  as  relates  to  lands 
taken  eompnlsorilj  ,*  and  At  holding  of  tht  market  or  /air,  and  the  protection  thereof;  anS 
slangbter-honses ;  and  weighing  goods  and  oaru ;  and  stallages,  rents,  and  tolls;  and  6jf-fow% 
— shaQ  be  incorporated  with  so  much  of  the  aaid  local  aot  as  remains  unrepealed  bj  this  order^ 
aad  with  the  said  Pnblio  Health  Act  as  applied  to  the  said  township  bjr  this  order,  and  any  act 
ef  parliamsni  opDfirming  the  same." 


284  SAVAGE,  App.,  BROOK,  Resp.    M.  T.  1868. 

*2851  ^*®  *inacle  in  1858,  by  a  provisional  order  of  the  General 
J  Board  of  Health,  which  derives  the  authority  of  an  act  of 
parliament  from  the  16  &  17  Vict.  c.  24.    This  provisional  order, 
'Which  is  set  out  in  a  schedule  to  the  statute,  contains  many  clauses, 
by  one  of  which  (the  17th)  the  provisions  of  the  Markets  and  Fairs 
Clauses  Act.  1847,  with  respect  to  the  construction  of  a  market  in  the 
town  of  Barnsley,  and  the  making  of  by-laws  for  its  regulation,  are 
incorporated  with  the  local  act  8  G.  4,  c.  xxv.     One  of  the  provisions 
of  the  Markets  and  Fairs  Clauses  Act,  1847,  which  is  thus  incorpo- 
rated is  the  42d,  by  which  it  is  enacted  that  the  undertakers  may 
from  time  to  time  make  such  by-laws  as  they  think  fit,  for,  amongst 
other  things,  '*  regulating  the  use  of  the  market-place,  and  the  build- 
ings, stalls,  pens,  and  standings  therein,  and  for  preventing  nuisances 
or  obstructions  therein  or  in  the  immediate  approaches  thereto,"  and 
for  "  fixing  the  dayS;  and  the  hours  during  each  day,  on  which  the 
market  shall  be  held."  And  it  goes  on  to  provide  that  the  undertakers 
may  from  time  to  time  as  they  shall  think  fit,  repeal  or  alter  any  such 
by-laws,  ''provided  always  that  such  by-laws  shall  not  be  repugnant 
to  the  laws  of  that  part  of  the  united  kingdom  where  the  same  are  to 
have  effect,  or  to  the  provisions  of  this  or  the  special  act,  or  of  any 
act  incorporated  therewith."    The  local  board,  therefore,  are  directed 
to  make  by-laws  for  the  regulation  of  the  use  of  the  market    In  the 
town  of  Barnsley,  it  appears,  a  market  ;¥as  granted  some  eight  hundred 
years  ago.    The  whole  town  of  Barnsley  was  liable  to  become  a 
market-place :  and  the  usage  would  show  what  part  of  the  town  was 
the  place  so  assigned.    Originally,  it  seems,  it  was  a  market  for  the 
sale  of  butchers'  meat  and  other  marketable  commodities,  and  was 
held  on  Wednesday  on  a  place  called  the  Market  Hill.    In  course  of 
*2861   ^^^^  ^  ciame  '^'to  be  held  on  Saturday  also :  and  the  continuance 
-'  of  the  practice  for  a  long  series  of  years  might  constitute  that 
a  lawful  market  for  the  town  of  Barnsley.    The  town  has  greatly 
increased  in  extent  and  population :  and  the  number  of  persons  resort- 
ing to  the  market,  and  the  quantity  of  articles  of  all  descriptions 
brought  to  the  market,  have  likewise  greatly  increased;  and  for  about 
thirty  years  May-Day  Green  has  also  been  used  on  Saturday  evenings 
as  a  market-place  for  the  sale  of  butchers'  meat.    The  local  board  of 
health,  having  under  the  authority  of  the  74th  section  of  the  local  act 
acquired  the  market  and  fair  rights  in  Barnsley,  proceeded  to  erect  a 
market-house  and  to  make  regulations  for  the  government  of  persons 
resorting  thereto  for  the  sale  of  goods,  prescribing  the  particular 
places  to  which  they  should  carry  their  wares:  for  instance,  the 
covered  market  was  to  be  appropriated  as  follows, — the  ground-floor 
^  for  the  sale  therein  of  poultry,  fresh  butter,  and  eges, — the  first-floor 
for  the  sale  therein  of  oats,  wheat,  barley,  peas  and  beans  in  grain, 
seeds,  oil-cake,  and  tillages.    Then,  as  to  the  open  market  on  Market 
Hill,  it  was  to  be  appropriated  as  a  market  for  the  sale  therein  on 
Wednesdays  of  butchers'  meat,  bacon,  pork,  cheese,  eggs,  and  butter  in 
the  firkin  or  "  laid  down,"  flower-roots,  plants,  trees,  shrubs,  calicoes, 
cloth,  linen,  mercery,  articles  of  dress,  provisions,  coopers'  ware, 
pastry,  spices,  confectionery,  books,  nuts,  brooms,  besoms,  and  hard- 
ware: and  on  Saturdays  the  same  was  to  be  exclusively  appro- 
priated for  the  sale  therein  of  butchers'  meat,  bacon,  pork,  cheese, 


COMMON  BENCH  RBPORTS.    (15  J.  SCOTT.    N.  S.)        28ft 

eggs,  and  butter  in  the  firkin  or  "laid  down."  The  market-plaod 
on  May -Day  Green  under  the  same  regulation  is  dedicated  to  the 
sale  therein  of  horses,  cattle  of  all  kinds,  calves,  sheep,  pigs,  geese^ 
frait,  vegetables  of  all  sorts,  fish,  earthenware,  potters'  ware,  glasses^ 
hay,  straw,  grass,  and  vetches,  medical  wares,  old  metal,  images, 
•pictures,  cutlery,  hardware  and  smallware,  clothing,  boots,  and  r»2Q7 
shoes.  It  seems  to  me  that  the  local  board  have  classified  the  ^ 
various  articles  to  be  sold  in  the  respective  markets  in  an  extremely 
reasonable  manner,  whereby  persons  resorting  to  the  market  for  the 
purpose  of  selling  have  convenient  accommodation  afforded  them  for 
the  display  of  their  goods,  and  those  coming  thereto  for  the  purpose 
of  buying  may  know  where  to  find  each  article  they  may  want, — ' 
thus  making  the  market  more  accessible  and  suitable  for  the  purpose 
for  which  markets  are  established.  Such,  then,  being  the  rights  of 
the  local  board,  and  such  being  the  franchise, — the  whole  constituting 
one  market,  whether  held  in  the  market-house,  on  Market  Hill,  or  on 
May-Day  Green, — the  party  against  whom  the  complaint  was  made 
before  the  justices  was  a  butcher  to  whom  the  Market  Hill  was  pointed 
out  as  the  place  of  resort  for  persons  of  his  trade ;  and  he  chose  to 
resort  to  May-Day  Green  instead.  It  seems  to  me  that  the  by-law 
was  a  reasonable  one,  and  that  the  respondent  was  guilty  of  a  viola- 
tion of  it,  and  was  liable  to  the  penalty.  The  difficulty  presented 
before  the  magistrates,  and  which  we  as  well  as  they  have  felt  to  be 
a  very  grave  one,  arises  from  the  local  act  of  8  G.  4,  c.  xxv.,  for  the 
management  of  the  town  of  Barnsley,  which  gave  the  usual  powers 
to  commissioners  as  to  lighting,  watching,  and  generally  preventing 
nuisances  in  the  town.  The  62d  section  of  the  act  specified  a  variety 
of  nuisances  to  be  prohibited,  and  amongst  them  the  exposing  goods 
for  sale  in  the  public  streets  so  as  to  obstruct  or  incommode  the  pass- 
age of  any  person  or  carriage,  and  imposed  a  certain  penalty  on  per- 
sons offending  in  this  respect.  Then  comes  the  64th  section,  which 
enacts  that  "  no  person  shall  be  subject  to  any  penalty  by  virixie  of  this 
act,  for  placing  or  setting  any  stalls  or  standings,  or  ^exposing  r^oga 
to  sale  any  provisions,  &c.,  in  such  parts  of  the  several  streets,  ^ 
lanes,  passages,  and  public  places  within  the  said  town  as  shall  have 
been  heretofore  used  for  that  purpose,  at  the  times  of  the  usual  fairs 
and  markets  within  the  town,  due  care  being  taken  to  impede  as  little 
as  possible  the  public  passage  along  the  same."  The  respondent 
relies  upon  this  clause  as  exempting  him  from  penalties  under  the 
by-laws,  inasmuch  as  he  and  all  other  persons  carrying  on  the  trade 
of  butchers  had  before  been  used  to  sell  their  meat  on  the  market- 
days  at  the  stalls  on  May-Day  Green.  Now,  the  64th  section  of  the 
local  act  is  incorporated  with  the  16  &  17  Vict  c.  24,  under  which  the 
Barnsley  local  board  of  health  is  created ;  and  I  assume  that  the  64th 
section  is  to  be  taken  as  if  it  had  been  then  for  the  first  time  enacted, 
and  that  the  word  ''  heretofore"  is  to  be  read  as  meaning  '*  before  this 
act."  It  is  material,  because  at  the  time  of  the  passing  of  the  6  G. 
4,  c  XXV.,  May-Day  Green  was  not  used  as  a  market  for  the  sale  of 
batchers'  meat:  and  we  have  to  say  whether  the  by-law  in  question  is 
repugnant  to  that  section.  It  seems  to  me  that  what  was  contemplated 
by  the  64th  section  was  this : — Whereas,  by  the  62d  section,  persons 
exposing  goods  for  sale  in  the  public  streets  are  declared  guilty  of  a 


888  SAVAGE,  App.,  BROOK,  Resp.    M.  T.  1863. 

nuisance  and  liable  to  a  penalty,  such  penalty  shall  not  be  enforced 
for  exposing  goods  for  sale  on  market-days,  if  the  spot  where  such 
exposure  for  sale  takes  place  shall  have  been  theretofore  used  for  that 
purpose,  and  the  times  are  the  times  of  the  usual  fairs  and  markets 
within  the  town.  It  saves  the  use  of  the  spot  for  marketing  purposes, 
but  does  not  in  my  judgment  save  to  any  individual  the  right  of  resort- 
ing for  those  purposes  to  any  particular  place  where  he  had  before 
been  accustomed  to  go.  I  do  not  think  that  was  at  all  the  meaning 
♦2891  °^  *^®  statute.  It  *contemplated  the  overflow  of  the  market 
J  and  its  growth  beyond  the  ancient  bounds  of  the  market- 
place, and  protected  from  penalties  those  who  exposed  their  goods  on 
market-days  in  the  streets  and  places  immediately  contiguous  to  the 
market-place.  Subject  to  this,  the  regulations  made  by  the  local 
board  are  to  be  applied.  That  being  so,  the  by-laws  in  question  do 
not  prevent  or  in  any  manner  interfere  with  the  use  of  any  part  of 
the  town  of  Barnsley  which  had  been  used  before  for  market  par- 
poses.  On  the  contrary,  they  take  notice  of  May-Day  Green  as  a  place 
which  had  been  used  as  a  market,  and  provide  that  henceforth  it  shall  be 
devoted  to  the  sale  of  live  stock  and  the  other  articles  of  merchandise 
before  enumerated.  The  whole  of  the  places  which  theretofore  had 
been  used  for  the  purposes  of  a  market  are  fairly  regulated  with 
reference  solely,  as  it  appears  to  me,  to  the  convenience  of  the  sellers 
as  well  as  of  the  public  who  resort  to  the  market  to  buy,  giving  to 
both  the  fullest  enjoyment  of  the  rights  and  privileges  of  a  market. 
If  parties  choose  to  come  to  that  part  of  the  market  which  is  excla- 
sively  appropriated  to  cert^ain  descriptions  of  goods,  and  insist  upon 
exposing  for  sale  there  articles  which  the  by-laws  require  to  be  ex- 

{)osed  for  sale  in  a  different  part  of  the  market,  they  violate  the  rega- 
ations, — which,  as  I  have  before  said,  I  consider  to  be  very  reasona- 
ble,— and  must  bear  the  penalty.  That  is  the  way  in  which  these  two 
sections  are  in  my  judgment  to  be  construed.  It  seems  to  me  that 
the  local  board  had  authority  to  regulate  the  mode  as  well  as  the  time 
of  using  the  market.  It  clearly  was  competent  to  them  to  say,  as 
they  have  said  by  the  fifth  by-law,  that  the  market  shall  not  be  opened 
for  business  until  a  certain  hour.  Persons  using  the  market  most 
conform  to  that  regulation  ;  and,  if  they  insist  upon  coming  there  at 
*9Q01  *^  earlier  hour,  or  upon  keeping  their  'stalls  open  after  tlfe  hour 
J  prescribed  for  closing,  they  are  clearly  guilty  of  a  breach  of  a 
reasonable  by-law,  and  are  liable  to  the  penalty ;  and  this  is  totally 
different  from  the  penalty  imposed  by  the  62d  section  of  the  3  G.  4, 
c.  XXV.,  for  obstructing  a  public  way  by  exposing  goods  for  sale 
therein  under  circumstances  which  did  not  bring  the  parties  within 
the  proviso  in  s.  64. 

There  is,  undoubtedly,  very  considerable  difficulty  in  bringing  one's 
mind  to  a  clear  and  satisfactory  opinion  upon  a  number  of  imper- 
fectly recited  acts,  with  some  of  which  certain  provisions  of  others 
are  incorporated,  and  others  of  which  confer  powers  to  make  by-laws, 
with  no  "very  accurately  defined  limit.  If  they  apparently  conflict, 
all  that  I  can  do  is  to  put  the  best  construction  upon  them  which  the 
powers  of  my  mind  enable  me  to  do.  But  if  I  see  a  public  bodv 
exercising  in  a  fair  and  honest  and  reasonable  manner  powers  which 
are  conferred  upon  them  for  the  benefit  of  the  public,  I  should  re 


COMMON  BENCH  REPOBTS.    (16  J.  SCOTT.    N.  S.)        290 

quire  a  very  strong  case  to  be  made  out  to  induce  me  to  come  to  the 
conclusion  that  all  they  have  done  is  to  be  set  aside,  and  to  hold,  that, 
in  a  case  like  this,  every  tradesman  who  may  have  used  May-Day 
Green  as  a  market  for  the  sal^  of  butchers'  meat  for  a  month  or  a 
week  or  any  other  time,  may,  in  defiance  of  the  regulations  made  by 
the  local  board,  insist  upon  continuing  to  resort  to  the  same  spot  for 
that  purpose.  I  do  not  think  that  would  be  at  all  for  the  convenience 
of  the  town  of  Barnsley ;  nor  do  I  think  it  is  what  the  legislature 
could  have  contemplated.  I  am  well  aware  that  this  question  is  not 
entirely  confined  to  persons  living  in  the  town  of  Barnsley,  but  affects 
the  rights  and  the  interests  of  all  the  Queen's  subjects  who  may  wish 
to  resort  to  the  market  of  that  town  for  the  purpose  of  buying  or 
selling.  My  observations  have  been  particularly  directed  *to  pogi 
this,  that,  if  I  were  to  hold  that  these  by-la.ws  might  be  vio-  ^ 
lated  with  impunity,  I  should  be  putting  it  in  the  power  of  any  per- 
son so  disposed  to  vex  and  harass  the  local  board  by  introducing  all 
sorts  of  confusion  and  disorder  into  the  markets  of  the  town  of 
Barnsley. 

The  rest  of  the  court  concurring,        Judgment  for  the  appellant. 


BOOTH  V.  GAIK.    Nov.  13. 

Baeon  wm  innired  from  New  York  to  Lirerpool  on  a  poliey  deoIariDg  it  to  be  **  wamnted 
free  from  arerage,  anleee  general,  or  the  ship  be  itranded,  sank,  or  barat"  In  the  eonrae  of 
the  Toyage,  the  reuel  encountered  bad  weather,  and  the  master,  for  the  presorration  of  the  fhip 
and  eargo,  pnt  into  Bermuda,  where  on  survey  the  ressel  |ras  found  to  be  so  much  damaged 
that  she  could  only  be  repaired  at  an  expense  exceeding  her  value  when  repaired ;  and  she  waf 
aecordtngly  sold.  Surreys  were  then  held  upon  the  cargo,  in  order  to  determine  what  should 
ba  sent  on  and  what  sold.  Part  of  the  bacon  was  (bund  too  muoh  damaged  for  re-shipment, 
and  was  sold :  the  rest  was  re-shipped,  and  arrived  partially  damaged  at  Liverpool. 

The  assured  claimed  against  the  underwriters  the  difference  between  the  original  freight  and 
the  increased  freight  on  the  portion  so  carried  on,  the  warehouse-rent  incurred  at  Bermuda,  the 
•xpense  of  the  surveys  on  the  goods,  and  the  cooperage  on  those  forwarded, — all  which  charges^ 
except  the  cooperage.  It  was  admitted  upon  a  ease  stated  for  the  opinion  of  the  court  (who 
were  to  draw  inferences)  that  down  to  the  date  of  the  policy  in  question  it  was  the  custom  of 
underwriters  to  pay,  under  the  name  of  "particular  charges,"  upon  policies  in  the  same 
form : — 

Held,  upon  the  authority  of  The  Great  Indian  Peninsular  Railway  Company  v.  Saunders,  I 
B.  k  Sm.  41,  2  B.  ib  Sm.  366,  that  the  underwriters  were  not  liable  for  any  of  the  above  charges  ; 
and  that  the  circumstances  of  the  goods  being  of  a  perishable  nature  did  not  consdtute  any 
substantial  distinction  between  the  two  cases. 

This  was  a  special  case  stated  for  the  opinion  of  the  court,  without 
pleadings,  pursuant  to  the  Common  Law  Procedure  Act,  1854. 

1.  The  plaintiff  is  consignee  and  owner  of  one  hundred  and 
eighteen  boxes  of  bacon,  which  were  shipped  on  board  the  ship  Plan- 
tagenet  at  New  York,  which  vessel  was  bound  for  Liverpool. 

2.  The  defendant^  on  the  15th  of  January,  1862,  insured  the  said 
bacon  by  a  policy  which  contained  a  clause,  that,  in  case  of  any  loss 
or  misfortune,  it  should  *be  lawful  to  the  assured,  their  factors,  r«292 
BOTvants,  and  assigns,  to  sue,  labour,  and  travel  for,  in,  and  ^ 
about  the  defence,  safeguard,  and  recovery  of  the  said  goods  and  mer- 
ebandises  and  ship,  &c.,  or  any  part  thereof,  without  prejudice  to  that 
insurance,  to  the  charges  whereof  the  assurers  should  contribute  each 


292  BOOTH  v.  GAIR.    M.  T.  1863. 

one  according  to  the  rate  and  quantity  of  bis  sum  assured.  The 
policy  was  also  warranted  "  free  from  ayerage,  unless  general,  or  the 
ship  be  sunk,  stranded,  or  burntJ' 

8.  The  Plantagenet  sailed  from  New  York  on  the  11th  of  January, 
1862,  in  due  prosecution  of  her  voyage,  but  met  with  heavy  gales, 
and  the  ship  worked  and  strained  very  much,  and  leaked  so  as  to 
require  all  hands  at  the  pumps,  notwithstanding  which  the  water 
gained  on  the  pumps ;  and  for  the  preservation  of  the  ship  and  cargo 
she  bore  away  on  the  2l3t  to  Bermuda  as  a  port  of  refuge,  where  she 
came  to  anchor  on  the  1st  of  February  following. 

4.  When  the  ship  arrived  at  Bermuda,  and  under  the  advice  of 
competent  surveyors,  the  cargo  was  discharged;  and,  on  a  carefal 
examination  of  the  ship,  it  was  found  that  she  was  so  badly  damaged 
that  she  could  only  be  repaired  at  Bermuda  at  an  expense  exceeding 
her  value  when  repaired;  and  the  vessel  was  accordingly  condemned 
to  be  sold.  Surveys  were  then  held  upon  the  cargo,  in  order  to  ascer- 
tain its  state,  and  to  determine  what  should  be  sent  on  and  what  should 
be  sold.  Parts  of  it,  including  a  portion  of  the  bacon  the  subject  of 
this  case,  were  found  to  be  too  much  damaged  for  re-shipment,  and 
were  sold  by  the  advice  of  the  surveyors,  and  the  remainder  (includ- 
ing the  remainder  of  the  bacon  the  subject  of  this  case)  was  tranship- 
ped on  board  two  vessels,  the  Magnet  and  the  Surprise,  for  Liverpool, 
at  which  port  it  afterwards  arrived. 

5.  The  portion  of  the  bacon  so  sent  on  was  partially  damaged  by 
the  perils  insured  against. 

♦2931  *^'  ^^  ^^  admitted  that  all  the  above  acts  were  proper  un- 
^  der  the  circumstances.  The  expense  of  the  transhipment  of 
the  part  of  the  bacon  sd*  shipped,  and  the  freight  of  the  Magnet  and 
the  Surprise  exceeded  the  freight  originally  agreed  to  be  paid  to  the 
Plantagenet  by  the  sum  of  11.  lis,  7cf.,  which  sum  the  plaintiff  had 
paid. 

7.  The  warehouse-rent  at  Bermuda  for  the  whole  cargo  was  2i6/. 
145.  8c?.,  a  proportion  of  which,  viz.  10/.  6s.  6rf.,  had  been  paid  by  the 
plaintiff  in  respect  of  his  bacon,  of  which  amount,  part,  viz.  6/.  Ifo. 
6c/.,  was  so  paid  in  respect  of  the  part  of  the  said  bacon  so  sent  for- 
ward by  the  Magnet  and  the  Surprise,  and  3i  10^.,  the  remainder 
thereof,  in  respect  of  the  part  of  the  said  bacon  so  sold  as  aforesaid. 
The  expenses  of  the  surveys  held  upon  the  cargo  at  Bermuda  in  order 
to  ascertain  its  state,  and  to  determine  what  should  be  sent  on  and 
what  sold,  amounted  to  the  sum  of  8Z.  14«.,  a  proportion  of  which, 
viz.  the  sum  of  75.,  the  plaintiff"  had  paid  in  respect  of  the  said  bacon 
sent  forward  by  the  Magnet  and  the  Surprise  as  aforesaid,  and  2d,  in 
respect  of  the  part  so  sold  as  aforesaid.  The  sum  of  16Z.  85.  was  also 
paid  at  Bermuda  for  cooperage  of  the  goods  re-shipped,  a  proportion 
of  which,  viz.  the  sum  of  135.,  the  plaintiff  had  paid  in  respect  of 
the  said  bacon,  of  which  sum  of  135.,  part,  viz.  the  sum  of  12*.  9ci, 
was  so  paid  in  respect  of  the  part  of  the  said  bacon  so  sent  forward 
as  aforesaid,  and  3rf.  in  respect  of  the  bacon  so  sold  as  aforesaid. 

8.  It  was  admitted  that  there  was  no  constructive  total  loss  of  the 
bacon. 

9.  The  plaintiff  sought  to  recover  from  the  defendant  under  the 
«aid  policy  the  difference  between  the  amount  of  the  freight  by  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        298^ 

Flantagenet  and  the  sum  total  of  the  freight  of  the  Magnet  and  Sur- 
prise, and  the  shipping  charges,  viz.  IZ.  12^.  Id.,  and  also  a  r^ooA 
♦proportion  of  the  other  three  items  of  expense  incurred  in  *• 
respect  of  the  cargo  by  reason  of  the  vessel  putting  into  Bermuda, 
and  the  transhipment  of  the  cargo. 

10.  It  was  also  admitted,  that,  down  to  the  date  of  the  policy  in 
this  case,  it  was  the  custom  of  underwriters  to  pay  charges  on  cargo 
of  the  nature  of  the  items  the  subject  of  this  case,  except  cooperage, 
under  policies  in  the  form  of  the  policy  in  this  case,  under  the  name 
of  "  particular  charges." 

11.  The  defendant  contended,  that,  under  the  clause  in  the  margin 
of  the  policy,  "warranted  free  from  average,  unless  general,  or  the 
ship  be  stranded,  sunk,  or  burnt,"  the  Plantagenet  not  having  been 
stranded,  sunk,  or  burnt,  and  it  being  further  admitted,  for  the  pur* 
pose  of  this  case,  that  none  of  the  above  items  of  claim  were  general 
average  charges,  he  was  not  liable  for  any  of  the  items  sought  to  be 
recovered  by  the  plaintiflF. 

12.  The  plaintiff  contended,  that,  under  the  above  circumstances, 
the  amounts  so  claimed  by  him  were  not  within  the  warranty  by  the 
said  clauses,  but  that  the  defendant  was  liable  to  make  them  good. 

IS.  The  court  was  to  be  at  liberty  to  draw  inferences  of  fact  in  the 
same  way  as  a  jury  would :  and  the  questions  for  their  opinion  were, — 
first,  whether  the  before-mentioned  four  items,  or  any  part  and  which 
of  them,  were  within  the  said  warranty  clause  of  the  said  policy, — 
secondly,  whether  the  plaintiff  was  under  the  circumstances  of  the 
,  case  entitled  to  recover  the  said  four  items,  or  any  and  which  of  them, 
fiom  the  defendant. 

Quain,  for  the  plaintiff. — The  policy  is  in  the  ordinary  form,  with 
a  warranty  in  the  margin  "free  from  average,  unless  general,  or  the 
ship  be  stranded,  sunk,  or  burnt."  If  the  expenses  in  question  con- 
stitute ^average  loss  within  that  warranty,  the  plaintiff's  claim  r»295 
feils,  unless  that  they  are  recoverable  under  the  clause  enabling  *- 
the  assured,  their  factors,  servants,  or  assigns,  '*  to  sue,  labour,  and 
travel  for,  in,  or  about  the  defence,  safeguard,  and  recovery  of  the 
said  goods  and  merchandises,  or  ship,  or  any  part  thereof,"  &c.  "  This 
clause,"  savs  Mr.  Arnould  (1  Am.  on  Sh.  81,  2d  edit.),  "was  intro- 
daced  to  obviate  a  notion  which  appears  at  one  time  to  have  prevailed, 
that,  if  the  assured,  after  a  loss  which  threatened  the  total  destruction 
of  the  property  insured,  were,  either  by  himself  or  his  agents,  to  take 
active  measures  for  its  recovery  or  restoration,  he  would  thereby  lose 
the  right  to  abandon  which  he  might  otherwise  have  exercised.  The 
object  of  this  clause,  therefore,  is,  to  permit  the  assured  in  such  cases 
to  take  every  measure  for  the  recovery  of  the  property,  without  waiv- 
ing his  right  of  abandonment,  and  also  to  bind  the  underwriters  to  con- 
tribute, in  proportion  to  the  amount  of  their  several  subscriptions,  to 
reimburse  the  assured  for  the  expenses  which  he  may  thereby  have 
incurred."  The  case  which  gave  rise  to  this  question  is  that  of  The 
Great  Indian  Peninsular  Railway  Company  v.  Saunders,  1  Best  k 
Smith  41  (E.  C.  L.  R.  vol.  101),  in  error,  2  Best  &  Smith  266  (B.  0. 
L.  B.  vol.  110),  where  the  Court  of  Queen's  Bench,  and  afterwards  the 
court  of  error,  held,  that,  where  goods  are  insured  by  a  policy  of  ma- 
rine insurance  in  the  ordinary  form,  the  expression  "  warranted  free 


298  BOOTH  t;.  GAIR.    M.  T.  1863. 

from  particular  average"  is  not  confined  to  losses  arising  from  injury 
to  or  deterioration  of  the  goods  themselves,  bat  is  equivalent  to  a 
stipulation  against  total  loss  and  general  average  only,  and  consequently 
includes  expenses  incurred  in  relation  to  the  goods.  That  case»  it  is 
submitted,  does  not  decide  this.  The  circumstances  there  were  pecu- 
liar. The  vessel  having  become  disabled,  and  incapable  of  repair,  the 
*2961  S^^^^  0^^^  rails)  were  sent  back  to  their  port  of  departure, 

-■  *and  there  taken  possession  of  by  the  plaintifib,  and  re-shipped 
undamaged  on  board  other  vessels,  and  ultimately  arrived  in  safety  at 
their  destination.  Here,  however,  the  vessel  put  into  a  port  of  refuge 
in  the  course  of  the  voyage,  and  the  expenses  now  sought  to  be  re- 
covered were  incurred  in  unloading  the  cargo  and  transhipping  such 
of  it  as  was  capable  of  being  carried  on.  Erie,  C.  J.,  in  delivering 
the  judgment  of  the  court  of  error,  says :  '*  It  is  certain  that  the  plain- 
tifl&  cannot  recover  here  as  for  a  total  loss  of  the  goods,  seeing  that  the 
goods  were  restored  to  them  in  specie,  and  forwarded  by  them  to  their 
place  of  destination,  where,  so  far  as  any  sea-damage  is  concerned, 
they  may  have  received  full  value  for  them.  But  Mr.  James  ably  argues 
that  the  plaintiffs  are  entitled  to  recover  this  money,  not  as  compen- 
sation for  loss  of  the  goods  within  the  general  language  of  the  policy, 
but  as  the  expense  of  forwarding  them  to  their  destination  in  other 
vessels,  under  what  has  been  called  '  the  labour  and  travel  clause,' 
which  empowers  the  assured  to  sue,  labour,  and  travel  to  save  the 
thing  assured  from  impending  loss.  The  substantial  ground,  how« 
ever,  on  which  I  decide  this  case,  is  entirely  beside  his  able  argument. 
The  expenses  that  can  be  recovered  under  the  suing,  labouring,  and 
travelling  clause  are  expenses  incurred  to  prevent  impending  loss 
within  the  meaning  of  the  policy.  Now,  here,  the  goods  were  givea 
up  to  the  plaintiffs  in  perfect  safety :  and  the  question  is,  were  these 
expenses  incurred  to  prevent  a  total  loss  ?  Had  the  owners  a  rights 
when  the  goods  were  given  into  their  possession,  to  turn  the  transaction 
into  a  total  loss?  Certainly  not:  for  they  had  the  goods  in  specie, 
and  consequently  that  825/.  lis.  Id.  had  no  reference  to  suing,  labour- 
ing, or  travelling  in  order  to  prevent  such  a  loss."  There  was  no 
*2971  ^^^^  ^^  ^^^^  impending  there  at  the  time  the  shippers  took 

^  ^possession  of  the  rails.  But  here  the  goods  were  of  a  perish- 
able nature.  When  landed  at  Bermuda,  it  was  found  that  a  large  per* 
tion  of  the  oargo,  including  a  portion  of  the  bacon  the  subject  of  this 
case,  could  not  profitably  be  carried  on,  and  it  was  accordingly  sold ; 
the  rest,  though  partially  damaged,  being  sent  on  to  its  destination.  It 
must,  since  the  case  of  Balli  v.  Janson,  6  Ellis  &  B.  422  (E.  C.  L.  R. 
vol.  88),  be  conceded  that  there  cannot  be  a  constructive  total  loss  of 
ptrt  of  the  subject  of  insurance  under  such  a  policy  as  this ;  though, 
if  there  had  been  here  a  total  loss  of  the  part  sent  on,  there  would 
have  been  a  total  loss  of  the  whole.  The  expenses  claimed  under  the 
.suing  and  labouring  clause  must,  no  doubt,  be  such  as  are  incurred  in 
protecting  the  underwriters  from  an  impepding  peril  for  which  they 
would  be  responsible  under  the  policy.  If,  therefore,  a  total  loss  was 
possible  before  the  arrival  of  the  goods  at  their  destination,  the 
expenses  in  question  were  properly  incurred  in  forwarding  them.  The 
defendant  must  contend  that  the  risk  was  over  at  Bermuda.  That, 
kawever,  is  not  so :  the  master  was  bound  to  tranship  and  send  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        297 

goods  OD.  In  Phillips  on  InsuraDce,  vol.  2,  p.  464,  §  1777,  this  caao 
is  put: — "Sappose  the  oaseof  an  impending  total  loss  of  articles 
insured  free  of  average,  and  expenses  incurred  to  avert  it, — are  these 
expenses  within  the  exception,  and  to  be  borne  by  the  assured  ?  or 
are  the  underwriters  liable  for  them,  on  the  ground  that  they  were 
incurred  to  prevent  a  total  loss  for  which  they  would  have  been 
liable  ?  In  the  case  of  hides  insured  free  of  average,  and  sunk  near 
Nieu  Diep,  the  assured  claimed  reimbursement  of  the  expense  of 
recovering  the  hides,  under  the  clause  authorizing  him  to  sue,  labour, 
and  travel  for  the  safety  of  the  property  at  the  expense  of  the  under-  ' 
writers.  The  underwriters  were  held  not  to  be  liable  in  that  case,  on 
the  ground  that  they  were  not  liable  for  a  *total  loss  of  a  part  r^ogg 
of  the  hides  insured,  this  being  the  only  total  loss  that  was  '- 
impending  in  that  case,  as  above  stated.  But  Mr.  Justice  Livingston, 
in  giving  the  opinion  of  the  Supreme  Court  of  the  United  States, 
said, — '  The  parties  certainly  meant  to  apply  this  clause  only  to  the 
case  of  those  losses  or  injuries  for  which  the  insurers,  if  they  had  hap- 
pened, would  have  been  responsible.  The  underwriters  not  being 
answerable  for  the  principal  [impending]  loss,  cannot  be  so  for  the 
expenses  in  recovering  the  property  :'  Biays  v.  The  Chesapeake  Insur- 
ance Company,  7  Cranch  416.  This  distinctly  implies,  that,  if  a  total 
loss  of  the  whole  subject  insured  had  been  impending,  and  the 
expenses  had  been  incurred  to  avert  it,  the  underwriters  would  have 
been  liable.  But  the  case  is  not  a  positive,  direct  authority  to  this 
point  Mr.  Benecke  says, — Princ.  of  Indem.  in  Ins.  8th  London  edit, 
of  1824,  p.  880, — 'As  by  the  salvage  of  goods  insured  free  of  parti- 
cular average,  from  shipwreck,  &c.,  a  total  loss  is  prevented,  which 
would  have  fallen  upon  the  underwriter,  it  seems  obvious  that  the 
salvage  charges  must  be  borne  by  the  underwriter,  although  the 
degree  of  average  sustained  by  the  goods  has  no  influence  upon  him. 
In  a  similar  manner,  when  a  cargo  of  corn,  &c.,  arrives  damaged  at 
an  intermediate  port,  the  charges  not  only  of  warehousing,  but  also  of 
drying  and  preserving  the  corn,  must  fall  upon  the  underwriter, 
because  thereby  prevented  becoming  a  total  loss  at  his  charge.'" 
(Btlbs,  J. — Suppose  a  cargo  of  a  1000  ton  ship,  the  ship  being  disa- 
bled in  the  course  of  the  voyage,  were  transhipped  into  two  vessels 
of  600  tons  each,  and  one  of  the  two  was  totally  lost, — would  that  be 
a  total  loss  of  the  half?]  Under  such  a  policy  as  this,  it  is  submitted, 
it  would  It  will  be  contended  on  the  other  side  that  the  suing  and 
labouring  clause  cannot  apply  unless  the  goods  are  in  peril  of  perish- 
ing totally  *at  the  very  time  the  expenses  are  incurred.  That,  r^ooo 
however,  is  a  fallacy.  In  Phillips  on  Insurance,  §  1774,  it  is  ^ 
said:  "The  exoeptbn  of  loss,  like  the  other  provisions  of  the  polic]jr, 
has  Teferenoe  to  the  amount  at  risk  at  the  time  of  the  loss,  whether  it 
he  more  or  less  than  that  at  risk  before  or  afterwards.  Lord  Kenyoa 
aoquiesced  in  this  rule  applied  to  the  part  of  the  full  cargo  which  had 
•been  taken  on  board  when  the  loss  occurred :  Bohl  v.  Parr,  1  Esp.  N. 
P.  6. 446.  So,  after  a  part  of  the  cargo  had  been  landed,  the  exoq>- 
tio&4xf  loss  under  6  per  oent  was  held,  in  Maryland,  to  apply  to  the 
amoaot  atiU  Tomaining  at  risk :  The  Maryland  insurance  Company  u, 
Bosley,  9  OsU  &  Johnson  S87.  It  has  been  remarked  thai  a  total  loss 
tf  M  JBcmonuidaa  Mfticle  dnsured  tree  from  partial  loss  icanaot  take 


S06   PEARSON  v.  COM.  UNION  ASSURANCE  CO.    M.  T.  1863. 

aeattle  a  ship  if  neoessarj,  and  regulations  as  to  fire  and  ligbt, — none 
of  which  are  available  for  vessels  whilst  lying  in  the  river,  though 
equally  available  to  the  graving-dock  adjoining  the  Yictoria  Docks. 
There  was  also  evidence  that  the  vessel's  detention  in  the  river  was 
longer  than  was  necessary  for  the  replacing  of  her  paddles  and  paddle- 
wheels:  and  it  was  surmised  that  there  was  no  intention  on  the  part 
^f  her  owners  to  take  her  back  to  the  Yictoria  Docks,  as  she  had  been 
laken  up  for  the  conveyance  of  French  troops  to  Mexico. 

On  the  part  of  the  plaintift*  it  was  proved  that  it  was  a  usual  thing 
io  remove  the  paddles  of  large  steamers,  in  order  to  enable  them  to 
go  into  dry*docks,  none  being  wide  enough  at  the  entrance  to  receive 
♦8071  *^^®"^  without  so  doing ;  and  witnesses  were  called  who  stated 
''  that  the  time  employed  in  restoring  them  in  this  instance  was 
not  unreasonable,  and  that  it  could  be  done  at  a  very  much  less 
expense  at  the  place  where  the  Indian  Empire  was  moored  in  the 
river  than  in  the  Victoria  Docks.  Officers  from  some  of  the  principal 
fire-insurance  offices  in  London  were  also  called,  who  stated  that  they 
considered  the  risk  from  fire  to  be  greater  in  a  crowded  dock  than  in 
.the  Thames,  and  that  there  was  no  difference  in  their  premiums. 

The  jury  having  returned  a  verdict  for  the  plaintiflffor  the  amount 
^elaimed, 

Lushj  Q.  C,  on  a  former  day  in  this  term,  obtained  a  rule  nisi  to 
«nter  a  nonsuit,  on  the  ground  that,  upon  the  true  construction  of  the 
policy,  the  ship  was  not  covered  at  the  time  of  the  loss, — the  court  to 
be  at  liberty  to  deal  with  the  evidence  as  they  might  deem  it  adrais- 
■ible  or  otherwise.  He  submitted  that  the  essence  of  the  policy  was, 
that  the  vessel  should  during  the  whole  time  the  risk  attached  be 
lying  ia  the  Yictoria  Docks  or  in  a  dry -dock :  and  that  the  defendants 
never  consented  to  undertake  the  risk  sought  to  be  imposed  upon 
them  by  the  plaintiff^  which  from  the  circumstances  proved  at  the 
trial  was  verv  much  greater  than  any  that  the  vessel  could  run  if  she 
kad  remainea  in  the  Yictoria  Docks. 

Bovill,  Q.  C,  and  Watkin  Williams,  on  a  subsequent  day  showed 
eause. — The  liberty  to  go  into  dry-dock  was  clearly  not  confined  to 
the  graving-dock  adjoining  the  Yictoria  Docks.  If  that  had  been 
intended,  the  policy  would  have  stated  so  in  terms.  It  was  found  to 
be  not  wide  enough  to  receive  this  vessel.  Lungley's  dry-dock  was 
the  only  one  within  a  convenient  distance  which  would  accommodate 
*3081  ^^^ '  ^^^  ^  ^^^^  *'^^  accordingly  went.  The  evidence  showed 
^  that  it  was  the  invariable  custom  when  large  steam  vessels  are 
docked  to  remove  the  lower  part  of  their  paddle-wheels ;  and  it  was 
aIbo  proved  that  it  was  the  usual  course  to  replace  them  at  moorings 
in  the  river  near  to  the  dock ;  and  that,  in  this  instance^  the  expense 
^go  doing  would  have  been  greatly  enhanced  if  the  vessel  had  been 
l^ken  into  the  Yictoria  Docks  for  that  parpose.  It  being  lawful,  then, 
for  the  vessel  to  go  to  a  dry-dock  out  of  the  Yictoria  Docks,  it  follows 
tfUi  the  poliey  proteoted  her  in  going  to  and  returning  from  snch 
dlrj^dook,  and  during  the  time  necessarily  and  reasonably  employed 
in  the  transit  • 

liMh,  Q.  C,  Kaniak^,  Q.  C,  and  Sir  Q.  Homgrnan,  in  support  ef 
the  rule«— The  defendants  did  not  by  this  poU(^  consent  to  undertake 
any  river  risk.    Tke  iaaoranoe  is  confined  to  the  ship  whilst  lyin^;  in 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)       808 

tbe  Yictoria  Docks  or  in  the  graving-dock  adjoining.  Assuming  thai 
she  had  permission  to  go  out  of  the  Yictoria  Docks  to  a  dry -dock  else- 
where, the  risk  was  at  all  events  confined  to  the  period  of  her  stay  iq 
the  dry-dock  and  to  the  time  necessarily  consumed  in  going  to  and 
returning  from  such  dry-dock.  And  she  was  bound  to  return  to  the. 
Yictoria  Docks  to  get  her  paddle-wheels  replaced,  and  could  not  law- 
fully remain  in  the  river  for  that  purpose  at  the  risk  of  the  defend- 
ants. These  are  the  three  propositions  upon  which  the  defendants 
rely  to  absolve  them  from  liability  upon  this  policy. 

Beading  the  policy  with  the  knowledge  (which  all  parties  must  be 
assumed  to  have  had, — Barges  v.  Wickham,  88  Law  J.,  Q.  B.  17) 
that  there  was  a  graving-dock  adjoining  and  for  all  practical  purposes 
forming  part  of  the  Yictoria  Docks,  and  which  neither  party  knew  to 
be  of  capacity  insufficient  to  admit  this  vessel,  *the  necessary  r»oAa 
inference  is,  that  that  was  the  dry  dock  contemplated ;  for,  it  is  '- 
obvious  that  the  object  of  examining  and  repairing  the  ship's  bottom 
would  be  equally  well  attained  in  a  pontoon-dock  as  in  an  ordinary 
dry-dock.  [Bovill,  Q,  C. — There  was  no  evidence  that  either  the 
plaintiff  or  the  company  knew  that  there  was  a  graving-dock  con- 
nected or  communicating  with  the  Yictoria  Docks.]  It  is  a  fact  a9 
notorious  to  all  persons  using  the  Yictoria  Docks  as  is  the  existenee 
of  the  river  Thames.  The  limited  liberty  reserved  to  the  owners  of 
the  vessel  to  light  her  boiler-fires  once  or  twice  during  the  carrency  of 
the  policy,  excludes  the  notion  that  she  was  to  have  her  steam  up  to 
enable  her  to  go  out  to  a  dry-dock  elsewhere.  If  she  was  to  go  out 
at  all,  she  might  go  to  any  dry-dock  in  the  United  Kingdom.  The 
plaintiff  resided  at  Hull.  Was  it  intended  that  the  vessel  should  go 
there  to  be  docked  7  Every  form  of  marine  policy  includes  fire  as 
one  of  the  perils  insured  against.  Under  this  policy,  the  plaintiff 
would  not  have  been  protected  against  damage  from  collision  or  any 
other  sea  peril :  and,  the  common  marine  policy  covering  accidents 
from  fire,  this  policy  would  be  wholly  unnecessary  upon  such  a  coor 
struction.  [Erlb,  C.  J.— The  exclusion  of  the  lighting  of  her  fires 
for  the  parpose  of  getting  up  steam  for  a  sea  voyage  to  get  to  a  con- 
venient dry-dock,  still  leaves  it  compatible  with  the  language  of  the 
policy  that  liberty  was  reserved  to  the  owner  to  take  the  vessel  to 
any  dr^-dock  in  the  Thames.]  The  only  risks  contemplated  were 
dock  risks.  The  language  of  the  policy  excludes  river  navigation 
quite  as  much  as  sea  navigation.  Collision  is  a  risk  which  is  perhaps 
more  imminent  in  the  river  than  at  sea.  The  evidence  showed  the 
great  disparity  of  risk  from  fire  in  the  Yictoria  Docks  and  out.  Ii^ 
the  docks,  a  large  and  eiBoient  staff  of  watchmen,  firemen^  police^  and 
'carpenters,  is  alwayrat  hand  to  prevent  or  to  extinguish  con-  rssi  a 
flagratious.  These  precautions  and  the  applianoes  which  are  ^ 
available  in  the  Yictoria  Docks  do  not  and  qanoot  exist  in  lbs 
Thames.  Besides  all  these,  there  are  most  strlogeot  regulations  as  t» 
fires  and  Iif^ts  on  board  vessels  U  the  dooks^  whioh  sie  lapst  rigi^y 
eofoioed.  These  matters  are  most  important^  and  ^e  aU  takeo  iota 
acoount  in  estimatijig  the  risk  to  be  undertsken,  wd  aicertaiainff  ths 
amosnt  qt  premium  to  be  charged*  The  vesiel  imglbt  aod  ought  (a 
have  been  t^wed  baek  to  the  Yiotoria  Pooka  fiur  tbe  poxpose  of  having 
her  paddle-wheels  repUced  thoxcu    The  oulj  r^^aon  «s8i(^ued  by  the 


310   PEARSON  t;.  COM.  UNION  ASSURANCE  CO.     M.  T.  1863. 

plaintiff  for  not  having  done  so,  was,  that  such  a  course  would  have 
been  attended  with  increased  expense,  and  that  it  was  usual  to  do  this 
in  the  river.     But  the  course  of  business  as  to  vessels  not  insured 
under  policies  of  this  sort  can  have  no  application  to  the  existing 
•state  of  things  here.     It  raay  be  that  the  time  consumed  in  restoring 
the  paddle-wheels  in  the  river  was  not  unreasonable  or  excessive. 
But  it  is  submitted,  that,  if  the  vessel  was  at  liberty  to  quit  the  Vic- 
toria Docks  at  all,  she  was  only  protected  during  the  time  employed 
in  her  transit  to  and  from  and  in  her  stay  at  the  dry-dock,  and  that 
she  at  all  events  was  not  protected  while  in  the  river  for  an  unneces- 
sary time  for  those  purposes.  Cur.  adv.  vult. 
Eble,  0.  J.,  now  delivered  the  judgment  of  the  court  :(a) — 
This  was  an  action  on  a  policy  by  which  the  ship  .was  insured 
against  loss  by  fire  during  three  months.     The  ship  was  described  to 
be  lying  in  the  Victoria  Docks,  with  liberty  to  go  into  dry -dock,  and 
♦3111   ^  liglit  her  ♦boiler-fires  once  or  twice.     She  was  burnt  within 
J  the  three  months :  and  the  question  before  us  has  been,  whether, 
at  the  time  she  was  burnt,  she  was  covered  by  that  policy. 

The  circumstances  which  existed  at  the  time  the  policy  was  made 
relative  to  its  construction,  and  the  circumstances  attending  the  loss 
relative  to  the  application  of  that  construction  to  the  loss,  appeared  to 
be  as  follows : — The  ship  was  lying  in  the  Victoria  Docks,  and  was  to 
be  repaired  in  a  dry-dock.  The  Thames  Graving  Dock,  in  whicb 
ships  were  lifted  by  pontoons,  so  as  to  be  dry,  was  adjoining  to  the 
Victoria  Docks :  but  the  width  of  this  ship  prevented  her  from  going 
into  this  pontoon-dock.  Lungley*s  dry-dock,  distant  about  two  miles 
up  the  Thames  from  the  Victoria  Docks,  was  the  nearest  that  could 
receive  the  ship  conveniently ;  and,  for  the  purpose  of  entering  there, 
it  was  necessary  to  remove  the  lower  half  of  the  paddle-wheels.  This 
was  done  in  the  Victoria  Docks ;  and  the  parts  of  the  wheels  were 
deposited  in  a  barge  there,  and  the  ship  was  towed  up  to  Lungley'a 
dock,  and  the  necessary  repairs  were  nearly  completed  there  in  the 
course  of  two  months.  Then  the  ship  was  towed  down  to  the  gov- 
ernment buoy  off  Deptford,  within  six  or  seven  hundred  yards  of  the 
Victoria  Docks,  and  moored  there  for  the  purpose  of  having  the  parts 
of  the  paddle-wheels  replaced  there.  The  utmost  despatch  was  used 
in  performing  this  work ;  and  it  was  nearly  completed  in  ten  days. 
While  this  was  being  done,  other  work  was  in  progress  in  order  to 
make  the  ship  fit  for  sea ;  but  there  was  no  delay  on  this  accoant, 
and  nothing  turned  on  this  work.  Then,  the  ship  was  burnt  at  her 
moorings. 

'  The  evidence  showed  that  it  was  usual  with  the  great  ship-builders 
in  the  Thames  for  ships  of  great  width  which  had  taken  off  the  half 
*8121  ^^  ^^^^^  paddle-wheels  *for  the  purpose  of  going  into  dry- 
-'  docks,  to  lie  in  the  Thames  after  coming  out,  while  the  parts 
of  the  paddle-wheels  were  being  replaced ;  and  that  the  mooting  of 
the  plaintiff's  ship  in  the  river  while  this  process  was  performed  was 
according  to  the  course  usually  followed  by  them  in  respect  of  ships 
whose  paddle-wheels  had  been  in  like  manner  and  for  the  same  purpose 
removed.  The  evidience  further  showed  that  the  plaintiff's  ship  might 
have  been  taken  back  into,  the  Victoria  Docks  without  being  moored 

(a)  Tht  OMM  WM  wguod  MoN  Brie,  C.  jr.»  WiUiamf,  J.,  BjIm,  J.,  and  Keating,  J. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        312 

in  the  Thames,  and  that  the*  paddle-wheels  might  have  been  replaced 
in  those  docks,  but  that  the  expense  of  the  work  in  the  docks  would 
have  been  four  times  as  great  as  it  was  in  the  river. 

It  was  said  that  the  work  could  be  more  conveniently  performed  in 
the  Thames  than  in  the  docks:  but  this  was  not  explained  to  have 
any  meaning  beyond  the  expense. 

The  evidence  further  showed  that  in  the  Victoria  Docks  there  were 
very  careful  precautions  to  prevent  damage  by  fire, — watchmen  at  all 
hours,  a  numerous  fire-brigade  always  ready,  policemen  and  other 
servants  of  the  company  trained  to  the  use  of  fire-engines,  and  car- 
penters ready  to  scuttle  a  ship  on  fire,  together  with  an  ample  water 
supply  from  stand-pipes  in  many  places;  while,  in  the  river,  it  was 
said  that  there  were  only  three  floating-engines  placed  at  considerable 
distances  from  each  other,  and  that  nearly  an  hour  elapsed  between 
the  breaking  out  of  the  fire  and  the  arrival  of  the  first  of  these 
engines. 

There  was  evidence,  that,  in  offices  of  great  importance,  such  as  the 
Sun  and  the  Phoenix,  the  premium  was  the  same  whether  the  ship  lay 
in  the  river  or  a  dock.  But,  in  these  offices,  the  same  rate  had  been 
continued  from  a  far  distant  time ;  and  the  defendants  objected,  with 
good  reason,  as  we  think,  that  their  *rights  under  this  contract  r#Q-i  o 
were  not  to  be  affected  by  the  rights  of  parties  under  other  *■ 
contracts  with  other  companies. 

These  being  the  facts,  the  defendants  contended  that  the  ship  was 
not  covered  by  the  policy  at  the  time  of  the  loss,  on  three  grounds, — 
first,  because  the  ship  was  not  lying  in  the  Victoria  Docks,  or  in  the 
dry-dock  adjoining  thereto, — secondly,  because  the  ship  was  not  in 
any  dock, — thirdly,  because  the  ship  was  not  in  a  dock  nor  in  transit 
from  a  dock  to  a  dock  within  the  meaning  of  the  policy. 

As  to  the  first  and  second  grounds,  the  defendants  contended  that 
the  words  *' lying  in  the  Victoria  Docks,  with  liberty  to  go  into  dry- 
dock,"  confined  the  risk  either  to  the  Victoria  Docks  and  the  dry -dock 
adjoining  thereto,  or  to  the  Victoria  Docks  and  some  dry-dock,  and 
excluded  the  risk  in  the  transit  from  one  dock  to  another.  But,  in 
respect  of  these  grounds,  we  think  that  the  defendants  failed. 

As  to  the  first  ground,  the  words  of  the  policy  do  not  express  that 
the  liberty  is  confined  to  any  particular  dry -dock :  and,  although  it  is 
probable  that  both  parties  expected  that  the  pontoon-dock  would  be 
used,  and  neither  party  knew  that  the  relative  admeasurements  of  the 
ship  and  that  dock  would  prevent  the  adoption  of  that  course;  still 
effect  is  to  be  given  to  the  words  in  their  ordinary  meaning ;  and  the 
liberty  to  go  into  dry-dock  is  unrestricted  in  expression.  If  the 
defendants  intend  to  confine  the  liberty  to  the  pontoon-dock  only, 
they  must  express  their  intention  more  clearly. 

As  to  the  second  ground,  if  the  plaintiff  had  liberty  to  resort  to 
any  convenient  dry-dock,  we  think  the  policy  covered  the  ship  while 
the  plaintiff  used  the  liberty  so  given  to  him  thereby.  The  descrip- 
tion is  in  the  nature  of  a  condition:  the  defenaants  insure  for 
*tbree  months,  provided  the  ship  is  in  the  situation  mentioned  r^oi^ 
in  the  policy,  that  is,  in  either  dock  or  in  the  necessary  passage  '■ 
from  the  one  to  the  other. 

We  are  aware,  that,  under  this  construction,  the  plaintiff  would  be 


S14   PEARSON  ».  COM.  UNION  ASSURANCE  CO.    M.  T.  1863. 

tninsnred  as  to  all  risk  from  collision  or  the  like  in  the  river  during 
transit,  and  that  the  defendants  would  take  an  undefined  liability  in 
the  river  if  the  plaintiff  might  choose  a  dry-dock  at  an  undefined 
distance  from  the  Victoria  Docks.  But,  notwithstanding  these  con- 
siderations, we  are  brought  to  the  construction  above  stated,  and 
decide  against  the  defendants  on  the  first  two  grounds  on  which  they 
relied. 

As  to  the  third  ground  above  stated,  we  think  that  the  defendants 
are  entitled  to  succeed.  We  think  that  the  ship  was  not  in  a  dock, 
nor  in  transit  from  a  dock  to  a  dock  within  the  meaning  of  the  policy. 
We  consider  that  the  risk  contemplated  by  both  parties  was  sub- 
stantially the  risk  of  fire  in  a  dock :  and,  although  the  defendants  are 
held,  by  implication,  to  have  undertaken  so  much  risk  in  the  river  as 
was  essential  for  the  exercise  of  the  liberty  of  transit  from  dock  to 
dock;  yet  this  risk  in  the  river  is  limited  to  that  transit,  and  does  not 
in  our  judgment  extend  to  any  time  during  which  the  ship  stopped 
in  the  river  not  for  the  purpose  of  that  transit.  A  few  hours  were  all 
that  would  have  been  required  for  that  purpose.  The  delay  of  ten 
days  was  for  the  purpose  of  replacing  the  paddle-wheels;  and  there 
was  no  proof  that  they  could  not  have  been  replaced  as  well  for  the 
ship,  although  with  more  expense,  in  the  docks  where  they  were  taken 
off  and  were  left  till  the  ship  returned.  The  risk  in  the  river  appears 
much  greater  than  in  the  docks,  by  reason  of  the  absence  of  many 
appliances  to  secure  against  fire  which  were  available  in  the  docks. 
♦S151  ^^^  plaintiff  placed  much  reliance  on  the  fact  above  *stated, 
■'  that  it  was  usual  with  the  great  ship-builders,  after  repairing 
fluch  ships  as  the  plaintiff's,  to  replace  the  paddle-wheels  in  the  river. 
But  the  question  here  does  not  depend  on  tne  course  of  business  usual 
with  ship-builders,  but  upon  the  contract  of  these  parties.  If  a  ship 
is  prepared  for  sea  iu  the  dock  of  a  ship-builder  in  all  respects  except 
the  paddle-wheels,  the  fixing  of  which  is  of  necessity  postponed  in 
order  that  the  ship  may  pass  oht  of  the  dock,  it  might  well  be  the 
best  and  cheapest  course  for  the  ship  to  lie  at  a  convenient  place  in 
the  river  to  receive  those  wheels,  and  then  proceed  on  her  voyage. 
Time  and  money  would  probably  be  wasted  by  sending  her  into 
another  dock.  But,  under  this  contract,  the  insurance  is  confined  by 
its  express  terms  to  the  docks :  and,  though  it  is  extended  by  implica- 
tion to  the  necessary  passage  from  one  dock  to  the  Other,  there  is  no 
implication  that  it  should  be  made  to  extend  to  lying  in  the  river  for 
any  purpose  of  repair.     The  paddle-wheels  were  not  essential  for  the 

Eurpose  of  moving  the  ship  into  the  docks.  The  same  power  which 
rought  her  to  her  moorings  could  have  taken  her  on  to  the  docks. 
^  According  to  our*  construction,  the  ship  was  not  covered  unless  she 
passed  directly  from  the  one  dock  to  the  other.  She  did  not  so  pass, 
out  was  delayed  ten  days :  and  this  delay  was  not  owing  to  any  cause 
connected  with  the  passage.  It  follows  that  during  those  ten  days 
the  defendants  were  not  liable. 

The  rule,  therefore,  for  entering  a  verdict  for  the  defendants,  or  a 
nonsuit,  must  be  made  absolute.  Bule  absolute  for  a  nonsuit 


COMMON  BENCH  BEPOBTS.    (15  J.  SCOTT.    N.  S.)        311 


♦ROSEWAENE  v.  BILLING.    Nvo.  19.  [*31d 

It  is  DO  aaswer  to  an  action  for  money  paid  at  the  request  of  the  defendant,  to  plead  that  tiM 
noaej  was  paid  in  respect  of  losses  on  time  bargains  for  mining  shares  which  the  plaintiff  had 
mad«  as  broker  for  the  defendant  with  third  persons. 

This  was  an  action  for  money  paid  by  the  plaintiff  for  the  defend- 
ant at  his  request,  and  for  money  found  due  on  accounts  stated. 

Second  plea, — that  the  plaintiff  was  and  is  a  mining  share  agent, 
and  that  the  defendant  retained  and  employed  the  plaintiff  as  such 
agent,  after  the  passing  and  coming  into  operation  of  a  certain  act  of 
parliament  passed  in  the  session  of  parliament  held  in  the  eighth  and 
ninth  years  of  her  present  Majesty,  intituled  "An  act  to  amend  the 
law  concerning  games  and  wagers"  (8  &  9  Vict.  109),  to  make  and 
enter  into  on  bishalf  of  the  defendant,  and  the  plaintiff  then  in  pursu- 
ance thereof  made  and  entered  into  for  the  defendant,  with  certain 
persons  whose  names  were  to  the  defendant  unknown,  certain  con- 
tracts by  way  of  gaming  and  wagering,  contrary  to  the  form  of  the 
said  statute,  that  is  to  say,  certain  watering  contracts  under  the  sem- 
blance of  pretended  sales  to  the  defendant  by  such  persons  respecting 
the  market- price  and  value  of  certain  shares  in  a  certain  mine  called 
the  Wheal  Harriet  on  certain  days  then  to  come,  whereby,  under 
pretence  of  contracts,  the  said  plaintiff  agreed  with  such  personS| 
being  the  persons  with  whom  the  plaintiff  so  contracted  for  the 
defendant,  that,  if  the  price  and  value  of  the  said  shares  should  be 
lower  on  the  said  future  day  than  on  the  respective  days  when  the 
said  wagering  contracts  were  respectively  made  as  in  that  plea  was 
mentioned,  he  the  defendant  should  receive  from  the  said  persons  the 
amount  of  the  difference  between  the  value  of  the  said  shares  respect- 
ively on  the  several  days  when  the  same  wagering  contracts  were 
respectively  made,  and  the  market  value  on  the  *said  future  r*Qi»t 
days ;  and,  if  the  price  and  value  thereof  should  be  higher  on  ^ 
the  said  future  days  than  on  the  respective  days  when  the  said  wager- 
ing contracts  were  respectively  made  as  aforesaid,  the  defendant  should 
pay  to  the  said  persons  respectively  the  amount  of  the  difference 
between  the  value  thereof  on  the  said  days  on  which  the  said  wager- 
ing contracts  respectively  were  made  as  aforesaid  and  the  market 
value  thereof  on  the  said  future  days :  that  it  never  was  intended  that 
any  shares  should  be  actually  bought  by  the  defendant  or  sold  or 
delivered  by  such  persons  in  pursuance  of  the  said  wagering  contracts 
as  aforesaid  or  otherwise,  (W  he  the  plaintiff  always  well  knew ;  but  that 
such  differences  alone  should  be  received  or  paid  by  the  defendant  as 
aforesaid  :  that  the  money  so  paid  by  the  plaintiff  was  paid  in  settling 
and  discharging  differences  which  had  become  payable  to  the  said 
persons  upon  the  said  wagers  and  contracts  so  made  by  the  plaintiff 
as  such  agent  as  in  the  plea  aforesaid,  he  the  plaintiff  having  as  such 
mining  share  agent,  and  according  to  the  custom  among  mining  share 
agents,  made  the  said  wagers  and  contracts  in  his  the  plaintiff's  own 
name  as  a  principal,  without  disclosing  the  name  of  the  said  defend- 
ant :  and  that  the  said  accounts  were  stated  by  the  defendant  with  the 
plaintiff  of  and  concerning  the  said  money  so  paid  as  aforesaid,  and 
not  otherwise. 


317  ROSBWARNE  v.  BILLING.    M.  T.  1863. 

The  plaintiflF  demurred  to  this  plea,  the  ground  stated  in  the  mar- 
gin being,  '*  that  the  said  contracts  are  not  illegal,  and  that  the  said 
plea  does  not  aver  that  the  defendant  did  not  request  the  plaintiff  to 
pay  the  money  claimed."    Joinder. 

itQ'tcri  H.  J.  Hodgson^  in  support  of  the  demurrer.(a) — The  *plea 
-I  attempts  to  raise  a  defence  to  this  action  for  money  paid,  on 
the  ground  that  the  money  was  paid  in  respect  of  time-bargains, 
which  are  declared  null  and  void  by  the  18th  section  of  the  8  &  9 
Vict.  c.  109 ;  but  it  does  not  traverse  the  allegation  that  the  money 
was  paid  at  the  request  of  the  defendant^  and  therefore  the  defendant 
must  contend  that  the  contracts  in  respect  of  which  the  money  was 
paid  were  illegal.  There  is  a  material  distinction  between  a  contract 
which  is  simply  void,  and  one  which  is  declared  to  be  illegal :  Gye  r. 
Felton,  4  Taunt.  876.  It  is  not,  therefore,  any  answer  t(5  this  action 
to  say  that  the  contracts  in  respect  of  which  the  money  was  paid  were 
void  and  incapable  of  being  enforced  as  between  the  parties  to  them. 
In  Jessopp  V.  Lutwyche,  10  Exch.  614,  to  a  declaration  for  money 
paid  and  on  accounts  stated,  the  defendant  pleaded  that  the  causes  of 
action  accrued  aflber  the  passing  of  the  8  &  9  Vict.  c.  109,  under  and 
by  virtue  of  certain  contracts  made  between  the  plaintiff  and  the  de- 
fendant by  way  of  gaming  upon  the  market-price  of  shares ;  and  it 
was  held,  on  demurrer,  that  the  plea  was  bad.  .Parke,  B.,  in  the  course  of 
the  argument,  said, — "The  plea  does  not  negative  the  fact  of  a  third 
♦«ll  Q1  P^^^y  having  won  the  money ,  and  that  the  *defendant  request- 
J  ed  the  plaintiff  to  pay  the  amount  over  to  him.  The  plea, 
therefore,  is  consistent  with  a  state  of  facts  which  entitles  the  plaintiff 
to  recover :"  and  in  giving  judgment  he  said :  "  It  is  consistent  with 
the  plea  that  the  defendant  requested  the  plaintiff  to  pay  over  the 
money  for  him  to  a  third  party,  and  that  in  fact  it  was  so  paid;  in 
which  case  the  defendant  has  no  defence."  In  Fitch  v.  Jones,  5  Ellis 
&  B.  238  (E.  C.  L.  R.  vol.  85),  to  an  action  on  a  promissory  note  the 
defendant  pleaded  that  he  made  the  note  and  delivered  it  to  the  en- 
dorser in  payment  of  a  bet  on  the  amount  of  hop-duty,  and  that  the 
plaintiff  took  it  without  value.  At  the  trial  it  was  proved  that  the 
note  was  made  and  given  to  the  endorser  for  the  bet:  and  the  judge 
left  it  to  the  jury  to  say  whether  there  was  value  for  the  endorsement, 
telling  them  that  the  burthen  lay  on  the  defendant  to  prove  that  there 
was  none.  It  was  held  that  this  was  no  misdirection;  for  that,  though 
proof  that  a  negotiable  instrument  was  affected  with  fraud  or  illegality 
in  the  hands  of  a  previous  holder  raises  a  presumption  that  he  would 
endorse  it  away  to  an  agent  without  value,  and  consequently  calls  on 
the  plaintiff  for  proof  that  he  gave  value,  the  presumption  does  not 
arise  when  the  previous  holder  merely  held  without  consideration ; 

(a)  The  points  marked  for  argument  on  the  part  of  the  pluntiff  were  as  follows  :— 

**  1.  That' the  plea  does  not  show  that  the  said  contracts  alleged  bj  the  plea  to  hare  been  made 
bj  the  plain'tifif  as  the  defendant's  agent  with  divers  persons,  were  illegal  as  alleged : 

«  2.  That  the  plea  does  not  allege  thai  it  was  agreed  between  the  plaintiff  and  the  defendant 
that  shares  should  not  be  actnallj  boaght  by  the  defendant^  or  sold  or  delirered  bj  the  said 
persons,  in  pnrsnanee  of  the  sai|.d  contracts : 

"  3.  That  the  plea  admits  that  the  money  paid  by  the  plaintiff  was  paid  in  settling  and  dis> 
tharging  differences  which  had  become  payable  to  tiie  said  persons  nnder  the  said  contracts, 
bat  does  not  deny  the  allegation  in  the  declaration  that  the  same  was  paid  by  the  plaintiff  at 
the  defendant's  request." 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        319 

and  tTiat  a  bet,  thoagli  void,  and  therefore  no  consideration,  was  not 
illegal^  so  as  to  raise  a  presumption  that  the  endorsement  was  without 
value.  "It  is  clear,"  says  Lord  Campbell,  "that,  when  there  is  ille- 
gality* or  fraud  shown  in  a  previous  holder,  a  presumption  that  there 
is  no  consideration  for  the  endorsement  does  arise ;  for,  the  person 
who  is  guilty  of  illegality  or  fraud,  and  knows  that  he  cannot  sue 
himself,  is  likely  to  hand  over  the  instrument  to  some  other  person  to 
sue  for  him.  It  is  not  properly  that  the  burthen  of  proof  as  to  there 
being  consideration  is  shifted,  but  that  the  defendant,  on  whom  the 
burthen  *of  proof  that  there  was  no  consideration  lies,  has  by  r*QOA 
proving  fraud  or  illegality  in  the  former  holder  raised  a  primfi  '- 
presumption  that  the  plaintiff  is  agent  for  the  holder,  and  has  there- 
fore, unless  that  presumption  be  rebutted,  proved  that  there  was  no 
consideration.  But  no  such  presumption  arises  where  there  was  in 
the  former  holder  a  mere  want  of  consideration,  without  any  illegality 
or  fraud."  [Erle,  C.  J. — There  is  no  illegality  in  betting  on  a  race ; 
but  the  winner  cannot  sue.  Jessopp  v.  Lutwyche  seems  strongly  in 
the  plaintiff's  favour;  there  is  no  distinction  between  the  two  cases, 
save  that  there  the  wagering  contracts  were  made  between  the  plain- 
tiff and  the  defendant,  and  here  between  the  plaintiff  and  third  per- 
sons for  the  defendant.  Williams,  J. — This  plea  is  hardly  consist- 
ent with  the  suggestion  in  Jessopp  v-  Lutwyche,  that  the  money  may 
have  been  paid  at  the  defendant's  request  after  the  transactions  were 
over.  Erle,  C.  J. — Whether  the  request  to  pay  was  before  or  after 
the  loss  was  ascertained,  it  must  have  the  same  obligatory  force. 
Knight  V.  Cambers,  15  C.  B.  562  (E.  C.  L.  R.  vol.  80),  is  exactly  the 
same  as  Jessopp  v.  Lutwyche.(a)  It  was  there  held  that  it  is  no  an- 
swer to  an  action  for  money  paid  by  the  plaintiff  for  the  defendant's 
use,  at  his  request,  that  the  money  was  paid  in  respect  of  losses  on 
wagering  contracts  made  void  by  the  8  &  9  Vict.  c.  109,  s.  18.  Maule, 
J.,  says:  "Assuming  the  original  contracts  to  have  been  void,  there 
is  nothing  to  prevent  the  plaintiff  from  recovering  money  afterwards 
paid  by  him  at  the  defendant's  request."]  These  authorities  show  that 
the  plea  is  clearly  bad. 

Lopes,  contrii.(i) — It  may  be  conceded  that  a  plea  *that  the  r*Q2i 
money  which  is  sought  to  be  recovered  was  paid  upon  a  con-  ^ 
tract  which  was  merely  void,  would  afford  no  answer  if  the  money 
was  paid  at  the  defendant's  request.  The  plea  in  the  present  case, 
however,  is  not  like  those  in  Knight  v.  Cambers  and  Jessopp  v.  Lut- 
wyche :  it  states  not  merely  that  the  money  was  won  upon  a  void 
contract,  but  that  it  was  so  won  to  the  knowledge  of  the  plaintiff.  The 
18th  section  of  the  8  &  9  Yict.  c.  109  enacts  that  ^'  all  contracts  or 
agreements,  whether  by  parole  or  in  writing,  by  way  of  gaming  or 
wagering,  shall  be  null  and  void:"  and  it  goes  on  to  enact  ''that  no 
suit  shall  be  brought  or  maintained  in  any  court  of  law  or  equity  for 

(a)  Jessopp  V.  Lutwyche  was  decided  on  the  5th  of  Deeember,  1864;  Knight  v.  Cambers  on 
tli«  23d  of  Jannary,  1855.    And  see  Koigbt  v.  Fitob,  15  C.  B.  566  (£.  C.  L.  R.  Tol.  80). 

(&)  The  points  marked  for  argument  on  the  part  of  the  defendant  were  as  follows : — 

**  1.  That  the  money  paid  by  the  plaintiff  on  behalf  of  the  defendant,  being  alleged  in  the 
■eeoad  plea  to  have  been  paid  on  a  contract  which  the  plaintiff  knew  to  be  roid,  was  money  paid 
bj  the  plaintiff  in  his  own  wrong  : 

"2.  That  this  being  sabstantially  a  snit  to  reeorer  a  snm  of  money  aUeged  to  be  won  upon 
A  wager,  is  an  action  which  cannot  be  brought  or  maintained." 


321  ROSEWARNE  v.  BILLING.    M.  T.  1863. 

recovering  any  sum  of  money  or  valuable  thing  alleged  to  be  won 
upon  any  wager,  or  which  shall  have  been  deposited  in  the  hands  of 
any  person  to  abide  the  event  on  which  any  wager  shall  have^  been 
made."  What  is  the  subject  of  this  action  ?  Why,  the  money  won 
by  the  third  person  upon  the  illegal  bargains  made  for  him  by  the 
plaintiff.  If  such  an  action  as  this  may  be  maintained,  the  enactment 
of  the  gaming  act  may  always  be  evaded.  [Erlb,  C.  J.— It  is  quite 
clear  that  no  action  will  lie  to  recover  differences  upon  time-bargains, 
but  the  cases  referred  to  are  express  that  money  paid  at  the  request 
of  the  defendant,  though  for  the  purpose  of  paying  money  so  won, 
may  be  recovered.]  Neither  in  Jessopp  v.  Lutwyche  no^  in  Knight 
♦3921  ^'  C^"^^®^s  w^s  there  any  allegation  in  the  plea  that  the  *plain- 
J  tiff  was  a  party  to  the  illegal  contracts.  [Erle,  C.  J. — The 
judgment  in  both  cases  is  wholly  beside  that.] 

Hodgson  was  not  called  upon  to  reply. 

Erlb,  C.  J. — I  am  of  opinion  that  our  judgment  upon  this  demurrer 
must  be  for  the  plaintiff.  He  sues  the  defendant  for  money  which  he 
alleges  he  paid  for  the  defendant  at  his  request.  The  answer  the 
defendant  sets  up,  is,  that  the  money  became  due  by  reason  of  certain 
wagering  contracts  made  by  the  plaintiff  for  the  defendant  with  cer- 
tain other  persons  since  the  passing  of  the  8  &  9  Vict.  c.  109.  Now, 
the  law  as  to  gaming  contracts,  is,  that  all  such  contracts  are  null  and 
void,  and  no  action  can  be  maintained  upon  them.  But  they  are  not 
therefore  illegal.  The  parties  making  them  are  not  liable  to  any 
actions  or  to  any  penalties.  Here,  the  plaintiff  paid  the  differences 
according  to  the  result,  and  at  the  defendant's  request.  I  am  clearly 
of  opinion,  that,  if  a  man  loses  a  wager,  and  gets  another  to  pay  the 
money  for  him,  an  action  lies  for  the  recovery  of  the  money  so  paid. 
In  Jessopp  V.  Lutwyche  and  Knight  v.  Cambers,  the  Court  of  Exche- 
quer and  this  court  both  say  that  the  plaintiff  was  entitled  to  judg- 
ment on  the  ground  that  the  money  was  alleged  to  have  been  paid  at 
the  request  of  the  defendant,  and  that  there  was  nothing  to  show  that 
there  was  any  illegality.  Those  cases  are  in  point  to  show  this  to  be 
a  bad  plea.  I  should  incline  to  think,  that,  if  one  requests  another  to 
make  a  wagering  contract  on  his  account  and  pay  the  loss  if  loss  hap- 
pens, that  would  be  a  continuing  request  to  pay  until  revoked.  If 
the  party  were  a  broker  who  by  the  usage  of  the  share-market  was 
bound  in  all  events  to  pay,  it  might  be  a  question  whether  the  prin- 
cipal could  be  allowed  to  rescind.  It  will  be  time  enough,  however, 
♦8231  **^  decide  that  question  whenever  it  shall  arise.  For  the  de- 
^  termination  of  the  matter  in  hand,  it  is  sufficient  to  say  that 
there  is  nothing  upon  the  face  of  this  plea  to  exclude  the  notion  of  a 
subsequent  request  to  pay. 

Williams,  J. — I  am  also  of  opinion  that  this  is  a  bad  plea.  It  is 
impossible  to  distinguish  it  upon  any  solid  ground  from  the  pleas 
which  were  held  bad  by  the  Court  of  Exchequer  in  Jessopp  v.  Lut- 
wyche, 10  Exch.  614,  and  by  this  court  in  Knight  v.  Cambers,  15  C. 
B.  662  (E.  C.  L.  B.  vol.  80).  In  this  plea  certainly  it  is  alleged  that 
the  money  so  paid  by  the  plaintiff  was  paid  in  settling  the  di&erences 
which  had  become  payable  to  the  persons  with  whom  the  plaintiff 
made  the  wagering  contracts,  he  the  plaintiff  having  as  such  mining 
share  agent,  and  according  to  the  custom  among  mining  share  agents. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        328 

made  tbe  wagers  in  his  own  name  as  a  principal,  without  disclosing 
the  name  of  the  defendant :  but  I  do  not  think  that  at  all  differs  the 
case  from  those  to  which  I  have  alluded. .  It  is  quite  consistent  with 
this  plea  that  the  plaintiff,  having  made  the  contracts  in  his  own 
name,  and  being  by  force  of  the  statute  able  to  resist  payment  of  the 
money,  might  have  been  minded  to  resist  but  for  the  defendant's  re- 
quest to  him  to  pay.  There  is  nothing  in  the  plea  to  negative  the 
suggestion  that  the  payment  was  made  after  the  loss  at  the  defendant's 
request ;  and,  if  so,  the  defendant  is  clearly  liable  to  repay  it. 

Keatinq,  J. — I  am  of  the  same  opinion.  The  plea  is  perfectly 
consistent  with  the  plaintiff's  having  paid  the  money  at  the  request 
of  the  defendant,  though  both  parties  knew  at  the  time  that  the  con- 
tracts in  respect  of  which  the  payments  were  made  could  not  be 
enforced.  Judgment  for  the  plaintiff 


♦SHAND  and  Another  v.  JOHN  GRANT  and  ROBERT  p^^qoa 
GRANT.    Nov.  18.  L  "^^^ 

Certain  bales  of  cotton  were  consigned  by  merchants  at  Madras  to  London  for  the  account  of 
their  eerrespondents,  the  plaintiffi,  who  were  merchants  at  Liverpool,  under  billi  of  lading  haying 
in  the  margin,  pursuant  to  the  course  of  business  at  Madras,  a  note  of  the  measurement  and  tha 
amount  of  freight  On  the  ship's  arrival,  the  plaintiffs'  brokers  sent  the  cotton  to  a  wharf  with  « 
copy  of  the  hills  of  lading,  another  copy  of  the  bills  of  lading  being  forwarded  to  the  plaintiffs.  Ao- 
eerdlng  to  the  ordinary  practice,  the  wharfinger,  on  receiring  the  cotton,  measured  it,  and  sent 
a  note  of  the  measurement  to  the  defendants,  who  were  the  ship's  brokers  {one  of  them  aleo  being 
tU  owner).  The  defendants  as  brokers  made  out  a  freight-note,  adopting  the  measurement  from 
the  wharfinger's  note,  whieh  in  consequence  of  the  swelling  of  the  bales  on  the  Toyage  was  con- 
siderably more  than  the  Madras  measurement  in  the  margin  of  the  bills  of  lading.  The  freight- 
note  so  made  out  was  sent  by  the  defendants  to  the  plaintiffs'  brokers,  who,  assuming  it  to  be 
correct,  paid  the  amount,  and  received  credit  fur  it  in  their  account  with  their  principals;  and 
the  defendants  settled  the  ship's  accounts  upon  the  supposition  that  all  was  right.  The  plain- 
tiffs, on  balancing  their  accounts  with  the  Madras  house  at  the  end  of  the  following  year, 
diseoveied  for  the  first  time  that  they  had  overpaid  the  defendants  to  tbe  extent  of  88^.  8«.  Bd,,  and 
brought  an  action  to  recover  it  back : — 

Held,  that,  the  money  having  been  paid  under  a  mistake  of  fact,  the  plaintiffs  were  entitled  to 
recover  it  back /rom  the  ovmer  of  the  ehip,  but  not  as  against  the  (too  defendants^as  ship's  brokers, 
who  had  settled  accounts  with  the  owner  in  the  bon&  fide  belief  that  the  payment  had  been 
rightly  made. 

This  was  an  action  brought  by  the  plaintiflTs,  merchants  at  Liver- 
pool, to  recover  back  from  the  defendants,  who  were  ship-brokers  in 
London,  a  sum  of  88?.  85.  8c?.  which  was  received  by  them  in  excess 
of  freight  in  May,  1881,  under  the  following  circumstances : — 

The  plaintiff's  carried  on  business  as  merchants  at  Liverpool,  under 
the  name  of  Shand  &  Co.,  and  had  a  house  at  Madras  some  of  the 

Partners  in  which  were  different  from  those  composing  the  Liverpool 
ouse.  In  1861,  the  Madras  house  shipped  to  London  for  account  of 
the  Liverpool  house  (the  plaintiffs)  a  quantity  of  cotton  on  board  the 
ship  Comet,  0/ which  the  defendant  John  Grant  was  the  sole  ovmer.  The 
captain  signed  bills  of  lading  at  Madras  which  stated  the  cotton  to  be 
deliverable  in  London  on  payment  of  freight  "at  the  rate  of  21  Ss, 
per  ton  of  50  cubic  feet,  as  per  margin," — each  bill  of  lading  contain- 
me  a  computation  of  the  freight  to  be  paid  thereon,  thus, — "100 
bales,  measuring  25  tons,  2  feet,  at  2Z.  5s.  per  cubic  foot—  56?.  7«.  Sd."  • 


324  SHAND  v.  GRANT.     M.  T.  1863. 

the  aggregate  amount  of  the  four  bills  of  lading  (three  of  them  were 
for  200  tons  each)  being  394?.  125.  2d.  The  Comet  arrived  in  the 
*3261  ^^^^^^^*^  Docks  in  April,  1861.  Messrs.  Tetley  &  Co,,  the 
J  *plaintiffs'  brokers,  sent  the  cotton  to  ScovelPs  wharf,  sending 
at  the  same  time  one  copy  of  the  bills  of  lading  to  the  wharfinger, 
and  another  copy  to  the  plaintiffs  at  Liverpool.  The  wharfinger, 
according  to  the  usual  course  of  business,  measured  the  bales  on  land- 
ing, and  delivered  a  note  of  the  measurement  to  the  defendants,  the 
brokers  for  the  ship.  Upon  this  measurement  of  the  wharfinger  the 
defendants  made  out  the  freight-note,  and  sent  it  to  Tetley  &  Co., 
who,  not  having  the  bills  of  lading  before  them,  but  relying  on  the 
accuracy  of  the  wharfinger's  measurement,  paid  the  amount,  483Z.  0«. 
6(1,  in  May,  1861.  The  plaintiffs  credited  Tetley  &  Co.  with  the  sum 
80  paid,  making  no  objection  to  the  amount;  and  the  accounts  for  the 
voyage  were  wound  up  and  settled  as  between  the  defendants  as 
brokers  for  the  ship  and  John  Grant  as  owner. 

At  the  close  of  the  year  1862,  when  the  plaintifl&  sent  out  their 
account-sales  to  the  Madras  house,  the  latter  discovered  that  a  larger 
amount  of  freight  (by  88?.  8*.  3d,)  had  been  paid  for  the  cotton  than 
was  warranted  by  the  weights  entered  *in  the  margin  of  the  bills  of 
lading.  The  excess  was  caused  by  the  swelling  of  the  cotton  during 
the  voyage  or  on  landing.  The  plaintiffs  thereupon  called  on  the 
defendants  to  return  the  sum  so  overpaid.  This  the  defendants 
refused  to  do,  on  the  ground  that  their  accounts  for  the  voyage  were 
closed  and  settled.     The  plaintiffs  then  brought  this  action. 

At  the  trial  before  Erie,  C.  J.,  at  the  sittings  in  London  after  last 
Term,  in  addition  to  the  above  facts,  it  was  proved  that  the  entries  in 
the  margin  of  the  bills  of  lading  of  the  weights  and  amount  of  freight 
had  been  made  in  accordance  with  a  resolution  of  the  Madras  Chamber 
of  Commerce,  which  had  been  come  to  about  twelve  years  ago,  for  the 
*3261  ®^P^^^  purpose  of  *preventing  disputes  which  constantly  arose 
^  from  discrepancies  between  the  shipping  and  the  landing  weights 
of  cotton.  It  did  not,  however,  appear  that  the  plaintiffs  were  aware 
of  this  rule.  There  was  no  suggestion  that  either  party  had  acted  in 
the  matter  otherwise  than  with  perfect  bona  fides. 

On  the  part  of  the  defendants  it  was  submitted  that  the  plaintiffs, 
having  the  bills  of  lading  and  the  freight-note  in  their  possession, 
had  the  means  of  knowing  what  was  the  true  amount  payable  for 
freight,  and,  having  made  the  payment  with  full  knowledge  or  means 
of  knowledge  of  all  the  facts,  and  the  defendants  having  settled  their 
accounts  with  the  ship-owner  before  they  had  any  notice  of  the 
mistake,  and  in  the  bonfi  fide  belief  that  the  payment  had  been 
properly  made,  it  was  too  late  for  the  plaintif&  to  seek  to  recover 
it  back. 

For  the  plaintiffs  it  was  contended  that  the  payment  having  been 
made  under  a  mistake  of  fact,  it  was  inequitable  to  allow  the  defend- 
ants to  retain  it ;  and  that  the  circumstance  of  the  defendants  having 
settled  their  accounts  as  brokers  to  the  ship  at  all  events  afforded  no 
drfence  to  the  defendant  John  Grant,  the  owner,  and  that  the  record 
might,  if  necessary,  be  amended  by  striking  out  the  name  of  Robert 
Grant. 

His  Lordship  directed  the  jury  to  find  for  the  plainti£&  for  the 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        326 

amount  claimed,  reserving  leave  to  the  defendants  to  move  to  enter  a 
nonsuit. 

Luahj  Q.  C,  on  a  former  day  in  this  term  obtained  a  rule  nisi 
accordingly. — He  referred  to  Holland  v.  Russell,  1  Best  &  Smith  424 
(E.  0.  L.  K.  vol.  101).  There,  A.,  as  agent  for  a  foreign  owner, 
entered  into  a  policy  of  insurance  on  a  ship  in  the  usual  form.  At 
the  time  of  effecting  the  insurance,  A.  was  in  possession  of  a  letter 
hoxn  the  captain  informing  him  that  the  ship  had  received  injury, 
♦which  fact  he,  without  any  fraudulent  intention  to  deceive,  r*oo7 
omitted  to  disclose  to  the  underwriters.  The  ship  was  lost,  ^ 
and  B.,  one  of  the  underwriters,  paid  to  A.  the  amount  of  his  insur- 
ance; but,  having  subsequently  become  acquainted  with  the  above 
circumstances,  brought  an  action  for  money  had  and  received  against 
him  to  recover  it  back.  A.,  before  he  was  aware  of  B.'a  intention  to 
dispute  the  policy,  and  acting  bon&  fide  throughout,  transmitted  to 
his  principal  the  money  he  had  received  from  the  various  under* 
writers,  with  the  exception  of  a  certain  amount  for  which  he  had 
allowed  the  principal  credit  in  a  settled  account,  and  of  another 
which,  with  the  authority  of  the  principal,  he  had  expended  in  a  suit 
brought  by  him  on  behalf  of  the  principal  against  C,  another  under- 
writer, on  the  policy.  And  it  was  held, — ^first  (in  accordance  with 
the  decision  in  Russell  v.  Thornton,  4  Hurlst.  &  N.  788,  affirmed  on 
error,  6  Hurlst.  &  N.  140),  that,  in  consec^uence  of  the  concealment 
from  the  underwriters  of  the  fact  stated  m  the  captain's  letter,  the 
policy  was  voidable  at  the  election  of  the  underwriters, — secondly, 
that,  A.  being  only  an  agent,  of  which  B.  was  aware,  and  having, 
without  notice  of  B.'s  intention  to  repudiate  the  contract,  paid  over  to 
his  principal  the  amount  received  from  the  underwriters,  B.  was  not 
entitled  to  recover  back  from  A.  his  amount  of  the  insurance, — and, 
thirdly,  that  there  was  no  difference  in  this  respect  between  the 
money  actually  paid  over  by  A.  to  his  principal,  and  the  moneys 
which  had  either  been  allowed  in  account  between  them,  or  expended 
in  the  suit  against  G. 

Montague  Smithy  Q.  C,  now  showed  cause. — The  plaintifl&  are  clearly 
entitled  to  retain  their  verdict.  The  payment  was  made  in  the  bonfi 
fide  belief  that  the  demand  was  a  just  one,  and  in  ignorance  of  the 
*fact  that  the  freight-note  was  based  upon  a  measurement  r^oog 
different  from  that  which  was  the  measurement  agreed  co  in  '- 
the  bills  of  lading.  It  is  usual  among  brokers  to  settle  upon  the 
faith  of  the  freight-note.  The  objection  was  taken  as  soon  as  the 
mistake  was  discovered.  Notwithstanding  a  notion  which  formerly 
prevailed,  in  consequence  of  some  dicta,(a)  that,  if  the  party  paying 
the  money  be  guilty  of  laches,  in  not  availing  himself  of  the  means 
he  possesses  of  ascertaining  the  true  state  of  facts  at  the  time,  it  is 
now  clearly  settled  by  the  cases  of  Kelly  v.  Solari,  9  M.  &  W.  64, 
Bell  V.  Gardiner,  4  M.  &  G.  11  (E.  0.  L.  R.  vol.  48),  4  Scott  N.  R.  621, 
and  Townsend  v.  Crowdy,  8  C.  B,  N.  S.  477  (E.  C.  L.  R.  vol.  98),  that, 
where  a  party  pays  money  under  a  mistake  of  fact,  he  is  entitled  to 
recover  it  back,  although  he  may  at  the  time  of  the  payment  have 
had  means  of  knowledge  of  which  he  has  neglected  to  avail  himself. 

(a)  Sm  BUbto  V.  Lnmley,  S  East  400,  ud  Ifilnet  «.  PnnoAS,  0  B.  4  0.  071  (S,  0.  L.  B.  vol. 
IS),  •  D.  4  B.  781  (B.  C.  L.  B.  toL  »>. 


328  SHAND  v.  GRANT.    H.  T.  1863. 

—  *  ■ 

Williams,  J.,  in  the  last  case,  says:  "No  doubt,  at  one  time  the  rnlo 
that  money  paid  under  a  mistake  of  fact  might  be  recovered  back, 
was  subject  to  the  limitation  that  it  must  be  shown  that  the  party 
seeking  to  recover  it  back  had  been  guilty  of  no  laches.  But,  since 
the  case  of  Kelly  v.  Solari,  it  has  been  established  that  it  is  not 
enough  that  the  party  had  the  means  of  learning  the  truth  if  he  bad 
chosen  to  make  inquiry.  The  only  limitation  now  is,  that  he  mast  not 
waive  all  inquiry."  The  fact  of  the  brokers  having  paid  over  the 
monev  to  the  owner,  makes  no  difference.  Here,  we  have  the  owner 
as  a  defendant  on  the  record.  What  pretence  can  he  have  for  retaining 
the  money  ? 

Lush,  Q.  0.,  and  Sir  George  Honyman,  in  support  of  the  rule. — It 
is  not  necessary  to  dispute  the  authority  of  any  of  the  cases  which 
*3291  ^^^^  ^^  ^^^  money  paid  *in  ignorance  or  mistake  of  facts 
-I  may  be  recovered  back.  But  it  is  equall  v  clear,  that,  where 
the  payment  has  been  made  under  a  mistake  of  the  party's  legal 
rights,  or  with  an  intention  to  waive  all  inquiry  as  to  the  facta  or  the 
law,  the  money  is  not  recoverable.  The  plaintifis,  when  they  paid 
the  freight,  or  assented  to  the  payment  of  it  by  their  brokers,  upon 
the  wharSnger^s  measurement,  had  the  bills  of  lading  before  them. 
It  may  be  that  they  did  not  know  the  legal  effect  of  the  note  in  the 
margin  of  the  bills  of  lading ;  or  they  may  have  been  unwilling  to  raise 
the  question.  At  all  events,  the  action  cleariy  cannot  be  maintained 
against  the  two  defendants.  Holland  v.  Busaell  (which  was  affirmed 
in  the  Exchequer  Chamber,  82  Law  J.,  Q.  B.  297)  is  not  to  be  dis* 
tinguished  from  this  case.  If  the  court  should  think  that  the  record 
ought  to  be  amended  by  striking  out  the  name  of  Robert  Qrant,  it 
will  be  upon  the  same  terms,  as  to  costs,  as  in  the  case  of  one  of  two 
defendants  in  an  action  of  tort  being  struck  out, — the  suocesBfal 
defendant  will  have  a  moiety  of  the  joint  costs  of  the  defence. 

Pkb  Curiam. — The  plaintiffs  are  clearly  entitled  to  recover  back 
the  money  paid  by  their  brokers  in  excess  of  the  freight  really  doe 
upon  the  bills  of  lading.  But  they  can  only  recover  as  against  the 
shipowner,  the  defendant  John  Grant.  The  name  of  the  other  de- 
fendant, Robert  Grant,  will  be  struck  out  of  the  record ;  he  having 
costs  which  will  be  taxed  by  the  master  in  a  manner  which  it  is  not 
necessary  for  us  now  to  state.  Subject  to  that«  the  rule  will  be  dis- 
charged. 

Lush  submitted,  that»  inasmuch  as  the  defendants  were  obliged  to 
come  to  the  court,  there  should  be  no  costs  of  the  rule. 


* 


*8301        WiLUAHS,  J.^ — You  came  also  on  a  ground  whioh  you 
^  could  not  sustain.    The  costs  will  be  ooata  in  the  oaose  in  the 
naoal  way. 

Rule  diaeharged,-^be  reeord  to  be  amended  by  strikinjg  out 
the  name  of  the  defendant  Robert  Gr^nt^  the  plaiutiflb 
paying  Robert  Grant  bi9  costs  in  this  cauae.(a> 

(a)  Wli^re  on«  of  hro  dofendanU  in  u  aetion  of  coiieraef  ii  itniek  pvt  of  the  roford  tl  ^ 
IrUI,  and  the  plaintiff  c4>C«Inf  a  Terdtet  afalni  t  the  other,  the  ordSnarj  eomrae  of  taxation  it,  la 
tax  the  whole  ooett  of  the  aetioa  on  eaeh  aide,  and  dedaet  fveia  the  plalntMra  eeala  a  BMiety  of 
*•  aoate  of  tha  4elbaef,— hy  nahigjr  to  the  oM  nla  in  ihe  taaa  ef  tha  aeqalttal  «f  oaa  of  twt 
4eftB4aati  in  an  Mti(»  of  torr.    Redwaj  «.  Wefahari  13  C,  9*  N.  H  254  {%,  C.  U  B.  val  1«#). 


COMMON  BENCH  REPOBTS.    (15  J.  SCOTT.    N.  S.)        330 


JOHNSON,   Assignee  of  MATHEW  GUMMING,  a    Bankrupt, 
V.  STEAR.    N<n),  3. 

A.  dipoiit«d  A  doek-wamot  for  brandieg  wiUi  B.,  m  a  security  for  a  loan,  which  was  to  be 
repaid  on  the  29th  of  Jannary,  or,  in  default,  the  brandies  were  to  be  forfeited.  On  the  28th»  B. 
agreed  for  the  sale  of  the  brandies  to  C,  and  on  the  29th  delirered  to  him  the  doek-warraot, 
and  C.  took  aetaal  possession  of  the  brandies  on  the  30th : — 

Held,  that  the  sale  on  the  28th,  and  the  delirery  of  the  dock-warrant  to  the  vendee  on  the 
29th, — A.  having  the  whole  of  that  day  to  redeem  it, — amoanted  to  a  conversion. 

And  held  by  Erie,  C.  J.,  Byles,  J.,  and  Keating,  J.,  that  the  proper  measnre  of  damages  was 
the  aetaal  damage  A.  had  sustained  by  the  wrongful  conversion,  which,  as  there  was  no  inton- 
tioD  on  bis  part  to  redeem  the  pledge,  was  merely  nominal. 

But  by  Williams,  J.,  that  the  proper  measure  of  damages  was  the  value  of  the  thing  converted, 
—the  bailment  having  been  terminated  by  the  wrongful  sale. 

This  was  an  action  brought  by  the  plaintiff  as  assignee  of  one 
Mathew  Camming,  a  bankrupt,  for  the  alleged  wrongful  conversion 
by  the  defendant  of  243  cases  of  brandy  and  a  pipe  of  wine. 

The  defendant  pleaded  not  guilty  and  not  possessed,  whereupon  , 
issue  was  joined. 

♦The  cause  was  tried  before  Erie,  C.  J.,  at  the  sittings  in  r»Qot 
London  after  last  Easter  Term.  The  facts  as  proved  or  ad-  '- 
milted  were  as  follows : — On  the  26th  of  January,  1862,  the  bankrupt. 
Camming,  applied  to  the  defendant  for  an  advance  of  622.  10«.  upon 
the  security  of  certain  brandies  then  lying  in  the  London  Docks. 
The  defendant  consented  to  make  the  advance,  and  Gumming  gave 
him  his  acceptance  at  one  month  for  the  amount,  at  the  same  time 
handing  him  the  dock- warrant  for  the  brandies  and  the  following 
memorandum: — 

"I  have  this  day  deposited  with  you  the  undermentioned  243  cases 
of  brandy,  to  be  held  by  you  as  a  security  for  the  payment  of  my 
acceptance  for  622.  10^.,  discounted  by  you,  which  will  become  due 
Jannarv  29th,  1863 ;  and,  in  case  the  same  be  not  paid  at  maturity,  I 
authorize  you  at  any  time,  and  without  further  consent  by  or  notice 
to  me,  to  sell  the  goods  above  mentioned,  either  by  public  or  private 
sale,  at  such  price  as  you  think  fit,  and  to  apply  the  proceeds,  after 
all  charges,  to  the  payment  of  the  bill :  and,  if  there  should  be  any 
deficiency,  I  engage  to  pay  it. 

(Signed)        "M.  Gumming." 

Then  followed  an  enumeration  of  the  marks  and  numbers  on  the 
cases. 

On  the  Sd  of  January,  Gumming  obtained  from  the  defendant  a 
further  advance  of  252.  upon  the  security  of  a  warrant  for  a  pipe  of 
port  wine,  with  an  I.  O.  Tj.  and  a  post-dated  check  (7th  January),  but 
no  distinct  authority,  as  in  the  case  of  the  brandies,  to  sell  on  default 
of  payment  on  a  given  day. 

Camming  absconded  on  the  6th  of  January,  and  was  declared  a 
bankrupt  on  the  17th;  and  the  plaintiff  was  afterwards  appointed 
assignee. 

On  the  28th  of  January,  the  defendant  contracted  *to  sell  the  poftA 
brandies  to  Messrs.  Buck  &  Co.    On  tb«  29th  (the  day  on  l- 
vhicli  Cumming*&  acceptance  became  due)  the  dock-warrant  was 
deKrered  to  them,  and  on  the  30th  they  took  actual  possessioa  of  thn 
bmntfen.    The  eheck  given  by  Gumming  for  the  second  advance 


332  JOHNSON  r.  STEAR.    M.  T.  1863. 

being  also  dishonoured,  the  defendant  sold  the  wine  for  40Z.    The 
demand  and  refusal  were  on  the  27th  of  February. 

On  the  part  of  the  defendant  it  was  submitted  that  there  was  no 
conversion,  and  that  the  transactions  were  protected,  the  adjudication 
being  now  the  dividing  line ;  and  that,  at  all  events,  the  plaintiflF  was 
only  entitled  to  nominal  damages  for  the  premature  sale  of  the  bran- 
dies,— it  being  assumed  that  the  bankrupt  had  no  intention  to  avail 
himself  of  his  right  of  redemption. 

Under  the  direction  of  the  learned  judge,  the  jury  returned  a 
verdict  for  the  plaintiff,  assessing  the  value  of  the  wine  at  40t,  and 
that  of  the  brandies  at  62?.  lOs. ;  and  leave  was  reserved  to  the  de- 
fendant to  move  to  enter  a  verdict  for  him  if  the  court  should  be  of 
opinion  that  the  plaintiff  was  not  entitled  to  recover. 

Powell,  in  Trinity  Term,  moved  for  a  rule  accordingly. 

Erle,  C.  J. — As  to  the  wine  there  is  no  doubt:  there  was  a  mere 

deposit  of  the  warrant  as  a  pledge  to  secure  the  repayment  of  the 

>  sum  advanced,  no  day  being  fixed,  and  no  power  reserved  to  sell  on 

default.    The  sale,  therefore,  was  clearly  a  conversion.    As  to  the 

brandies,  however,  the  rule  may  go  upon  both  points. 

Denman,  Q.  C,  and  Howard,  now  showed  cause. — The  sale  of  the 
brandies  took  place  on  the  28th  of  January,  or  at  the  latest  on  the 
♦S3*l  2^^^'  when  the  ♦dock- warrant  was  handed  over  to  the  vendees : 
-'  Spear  v.  Travers,  4  Campb.  251 ;  Zwinger  v.  Samuda,  7  Taunt. 
265,  1  J.  B.  Moore  12,  Holt,  N.  P.  C.  895  (E.  C.  L.  R.  vol.  3);  Lucas 
V.  Dorrien,  7  Taunt.  278  (E.  C.  L.  B.  vol.  2),  1  J.  B.  Moore  29.  It 
was  a  wrongful  dealing  with  the  goods  which  was  inconsistent  with 
the  rights  of  the  owner.  Jones  v.  Cliff,  1  C.  &  M.  640,  3  Tyrwh. 
576,  Montague  on  Lien,  App.  185  et  seq.,  and  Cross  on  Lien,  p.  386, 
were  also  referred  to. 

Powell,  Q.  C,  in  support  of  his  rule. — There  was  no  evidence  of  a 
conversion  of  the  brandies.  It  is  true  there  was  a  contract  between 
the  defendant  and  Buck  &  Co.  for  their  sale  on  the  28th,  and  the  war- 
rant was  delivered  to  them  on  the  29th :  but  they  did  not  actually 
take  possession  of  the  brandies  until  the  30th;  until  which  time  it 
was  competent  to  them  to  reject  them.  [Eble,  C.  J. — Buck,  who  was 
called  as  a  witness,  stated  that  the  contract  for  sale  was  absolute  ou 
the  28th.  There  was  no  contention  about  that  at  the  trial.]  The 
learned  counsel  referred  to  Ellis  v.  Hunt,  3  T.  B.  464,  and  to  the 
authorities  collected  in  Addison  on  Torts  270,  271.  He  also  insisted 
that  the  plaintiff  could  only  be  entitled  to  nominal  damages,  inasmuch 
as  there  was  no  pretenc^  ior  supposing  that  the  bankrupt  intended  to 
redeem  the  brandies,  and,  although  the  sale  might  have  been  some- 
what premature,  the  plaintiff  was  not  therefore  to  lose  his  lien. 

Our.  adv.  vuU. 

Erlb,  C.  J.,  now  delivered  the  judgment  of  the  m^'ority  of  the 
court :  (a) — 

In  trover  by  the  assignee  under  the  bankruptcy  of  one  Gumming, 

the  facts  were  that  Cumming  had  deposited  brandy  Iving  in  a  dock 

*3341   ^^*^  ^°®  Stear,  by  *delivering  to  him  the  dock-warranty  and 

^  had  agreed  that  Stear  might  sell,  if  the  loan  was  uot  repaid 

on  the  29th  of  January ;  that,  on  the  28th  of  January,  Stear  sold  the 

(a)  Consisting  of  hinweli;  Byles,  J.,  and  Keating,  J. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        334 

brandy,  and  on  the  29th  handed  over  the  dock-warrant  to   the 
vendees,  who  on  the  30th  took  actual  possession. 

Upon  these  facts,  the  questions  are, — first,  was  there  a  conversion  ? 
and,  if  yes, — secondly,  what  is  the  measure  of  damages? 

To  the  first  question  our  answer  is  in  the  affirmative.  The  wrong- 
ful sale  on  the  28th,  followed  on  the  29th  by  the  delivery  of  the  dock- 
warrant  in  pursuance  thereof,  was,  we  think,  a  conversion.  The 
defendant  wrongfully  assumed  to  be  owner  in  selling ;  and,  although 
the  sale  alone  might  not  be  a  conversion,  yet,  by  delivering  over  the 
dock- warrant  to  the  vendees  in  pursuance  of  such  sale,  he  interfered 
with  the  right  which  Gumming  had  of  taking  possession  on  the  29th 
if  he  repaid  the  loan ;  for  which  purpose  the  dock-warranf  would 
have  been  an  important  instrument.  We  decide  for  the  plaintiff  on 
this  ground  :  and  it  is  not  necessary  to  consider  the  other  grounds  on 
which  he  relied  to  prove  a  conversion.  Then  the  second  question 
arises. 

The  plaintiff  contends  that  he  is  entitled  to  the  full  value  of  the 
goods  sold  by  the  defendant,  without  any  deduction,  on  the  ground 
that  the  interest  of  the  defendant  as  bailee  ceased  when  he  made  a 
wrongful  sale,  and  that  therefore  he  became  liable  to  all  the  damages 
which  a  mere  wrong-doer  who  had  wilfully  appropriated  to  himself, 
the  property  of  another  without  any  right  ought  to  pay.  But  we  are 
of  opinion  that  the  plaintiff  is  not  entitled  to  the  full  value  of  the 
gooas.  The  deposit  of  the  goods  in  question  with  the  defendant  to 
secure  repayment  of  a  loan  to  him  on  a  given  day,  with  a  power  to 
sell  in  case  of  default  on  ♦that  day,  created  an  interest  and  a  r^ooK 
right  of  property  in  the  goods  which  was  more  than  a  mere  '• 
lien:  and  the  wrongful  act  of  the  pawnee  did  not  annihilate  the  con- 
tract between  the  partifes  nor  the  interest  of  the  pawnee  in  the  goods 
under  that  contract. 

It  is  clear  that  the  actual  damage  was  merely  nominal.  The  de- 
fendant by  mistake  delivered  over  the  dock-warrant  a  few  hours  only 
before  the  sale  and  delivery  by  him  would  have  been  lawful ;  and  by 
such  premature  delivery  the  plaintiff  did  not  lose  anything,  as  the 
bankrupt  had  no  intention  to  redeem  the  pledge  by  paying  the  loan. 

If  the  plaintiff's  action  had  been  for  breach  of  contract  in  not  keep- 
ing the  pledge  till  the  given  day,  he  would  have  been  entitled  to  be 
compensated  for  the  loss  he  had  really  sustained,  and  no  more  :  and 
that  would  be  a  nominal  sum  only.  The  plaintiff's  action  here  is  in 
name  for  the  wrongful  conversion ;  but,  in  substance,  it  is  the  same 
cause  of  action ;  and  the  change  of  the  form  of  pleading  ought  not  in 
reason  to  affect  the  amount  of  compensation  to  be  paid. 

There  is  authority  for  holding,  that,  in  measuring  the  damaged  to 
be  paid  to  the  pawnor  by  the  pawnee  for  a  wrongful  conversion,  of 
the  pledge,  the  interest  of  the  pawnee  in  the  pledge  ought  to  be  taken 
into  the  account.  On  this  principle  the  damages  were  measured  in 
Chinery  v.  Yiall,  5  Hurlst.  &  N.  288.  There,  the  defendant  had  sold 
sheep  to  the  plaintiff;  and,  because  there  was  delay  in  the  payment 
of  the  price  by  the  plaintiff,  the  defendant  resold  the  sheep.  For  this 
wrong  the  court  held  that  trover  lay,  and  that  the  plaintiff  was 
entitled  to  recover  damages ;  hot  that,  in  DieaBaring  the  amomt  of 
those  damages,  although  the  plaintiff  was  entitled  to-  be  indemnified 

C.  B.  N.  8.,  VOL.  XV.— H 


835  JOHNSON  v,  STKAR.    M.  T.  1863. 

against  any  loss  he  had  really  sustained  by  the  resale,  yet  the  defend- 
*3361  ^^^  ^^  ^^  unpaid  vendor  had  an  interest  in  the  *sheep  against 
^  the  vendee  under  the  contract  of  sale,  and  might  deduct  tbe 
price  due  to  himself  from  the  plaintiff,  from  the  value  of  the  sheep  at 
the  time  of  the  conversion. 

In  Story  on  Bailments,  §  315,  it  is  said :  "If  the  pawnor,  in  conse- 
quence of  any  default  or  conversion  by  the  pawnee,  has  recoTcred 
back  the  pawn  or  its  value,  still  the  debt  remains  and  is  recoverable, 
unless  in  such  prior  action  it  has  been  deducted :  and  it  seems  that, 
by  the  common  law,  the  pawnee  in  such  action  for  the  value  has  a 
right  to  have  the  amount  of  his  debt  recouped  in  damages."  For  this 
he  cites  Jarvis  v,  Rogers,  15  Mass.  R.  389.  The  principle  is  also 
exemplified  in  Brierly  v.  Kendall,  17  Q.  B.  937  (E.  C.  L.  R.  vol.  79). 
There,  although  the  form  of  the  security  was  a  mortgage,  and  not  a 
pledge ;  and  although  the  action  was  trespass,  and  not  trover ;  yet  the 
substance  of  the  transaction  was  in  close  analogy  with  the  present 
case.  There  was  a  loan  by  the  defendant  to  the  plaintiff,  secured  by 
a  bill  of  sale  of  the  plaintiff's  goods,  in  which  was  a  reservation  to  the 
plaintiff  of  a  right  to  the  possession  of  the  goods  till  he  should  make 
default  in  some  payment.  Before  any  default,  the  defendant  took  the 
goods  from  the  plaintiff,  and  sold  them.  For  this  wrong  he  was 
liable  in  trespass:  but  the  measure  of  damages  was  held  to  be,  not 
the  value  of  the  goods,  but  the  loss  which  the  plaintiff  had  really 
sustained  by  being  deprived  of  the  possession.  The  wrongful  act  of 
the  defendant  did  not  annihilate  his  interest  in  the  goods  under  the 
bill  of  sale;  and  such  interest  was  to  be  considered  in  measuring  the 
extent  of  the  plaintiff  s  right  to  damages. 

On  these  authorities  we  hold  that  the  damages  due  to  the  plaintiff 
for  the  wrongful  conversion  of  the  pledge  by  4he  defendant,  are  to  be 
measured  by  the  loss  he  has  really  sustained  ;  and  that,  in  measuring 
*S371  *^^^^^  damages,  the  interest  of  the  defendant  in  the  pledge  at 
^  the  time  of  the  conversion  is  to  be  taken  into  the  account  It 
follows  that  the  amount  is  merely  nominal,  and  therefore  that  the 
verdict  for  the  plaintiff  should  stand,  with  damages  40s. 

Williams,  J.— I  agree  with  the  rest  of  the  court  that  there  was 
sufficient  proof  of  a  conversion ;  for,  although  the  mere  sale  of  the 
goods  (according  to  The  Lancashire  Wagon  Company  v.  Fitzhugh,  6 
Hurlst.  &  N.  602)  would  have  been  insufficient,  yet  I  think  the  band- 
ing over  of  the  dock-warrant  to  the  vendees  before  the  time  bad 
arrived  at  which  the  brandies  could  be  properly  sold,  according  to 
ihe  terms  on  which  they  were  pledged,  constituted  a  conversion, 
inasmuch  as  it  was  tantamount  to  a  delivery.  Not  that  the  warrant 
is  to  be  considered  in  the  light  of  a  symbol,  according  to  the  doctrine 
^applied  to  cases  of  donations  mortis  causS;  it  is  the  means  of  coming  at 
.the  possession  of  a  thing  which  will  not  admit  of  corporal  deliveryja) 

But  I  cannot  agree  with  my  Lord  and  my  learned  Brothers  as  to 
the  other  point ;  for,  I  think  the  damages  ought  to  stand  for  the  full 
value  of  the  brandies.  The  general  rule  is  indisputable,  that  the 
measure  of  damages  in  trover,  is,  the  value  of  the  property  at  the 
time  of  the  conversion.  To  this  rule  there  are  admitted  exceptions. 
There  is  the  well-known  case  of  a  redelivery  of  the  goods  before 

{«)  Wurd  f.  Turner,  2  Vm.  md.  431 ;  Smith  v.  Smiib,  2  Stra.  295. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        337 

action  brought,  which,  though  it  cannot  cure  the  conversion,  yet  will 
go  in  mitigation  of  damages.  Another  exception  is  to  be  found  in 
cases  where  the  plaintiff  has  only  a  partial  interest  in  the  thing  con- 
verted. Thus,  if  one  of  several  joint-tenants  or  tenants  in  common 
alone  brings  an  action  against  a  stranger,  he  can  recover  only  the 
value  of  his  share.  So,  if  the  plaintiff,  though  solely  entitled  r^ooa 
*to  the  possession  of  the  thing  converted,  is  entitled  to  an  ^ 
interest  limited  in  duration,  he  can  only  recover  damages  proportionate 
to  such  limited  interest,  in  an  action  against  the  person  entitled  to  the 
residue  of  the  property  (though  he  may  recover  the  full  value  in  an 
action  against  a  stranger).  The  case  of  Brierly  v.  Kendall,  which  my 
Lord  has  cited,  is  an  example  of  this  exception.  There,  the  gooas 
had  been  assigned  by  the  plaintiff  to  the  defendant  by  a  deed  the 
terms  of  which  operated  as  a  re-demise,  and,  since  the  defendant's 
quasi  estate  in  remainder  was  not  destroyed  or  forfeited  by  his  con- 
version  of  the  quasi  particular  estate,  the  plaintiff,  as  owner  of  that 
estate,  was  only  entitled  to  recover  damages  in  proportion  to  the 
value  of  it. 

With  respect,  however,  to  liens,  the  rule,  T  apprehend  is  well 
established,  that,  if  a  man  having  a  lien  on  goods  abuses  it  by  wrong- 
fully parting  with  them,  the  lien  is  annihilated,  and  the  owner's  right 
to  possession  revives,  and  he  may  recover  their  value  in  damages  in 
an  action  of  trover.  With  reference  to  this  doctrine,  it  may  be  useful 
to  refer  to  Story  on  Bailments.  In  §  325,  that  writer  says :  "  The  doc- 
trine of  the  common  law  now  established  in  England,  after  some 
diversity  of  opinion,  is,  that  a  factor  having  a  lien  on  goods  for 
advances  or  for  a  general  balance,  has  no  right  to  pledge  the  goods, 
and  that,  if  he  does  pledge  them,  he  conveys  no  title  to  the  pledgee. 
The  effect  of  this  doctrine  is,  in  England,  to  deny  to  the  pledgee  any 
right  in  such  a  case  to  retain  the  goods  even  for  the  advances  or 
balance  due  to  ih6  factor.  In  short,  the  transfer  is  deemed  wholly 
tortious;  so  that  the  principal  may  sue  for  and  recover  the  pledge, 
without  making  any  allowance  or  deduction  whatever  for  the  debts 
due  by  him  to  the  factor."  After  stating  that  the  English  legislature 
had  at  length  interfered,  *the  learned  author  continues,  in  r^oog 
§  826, — ''In  America,  the  general  doctrine  that  a  factor  cannot  '- 
pledge  the  goods  of  his  principal,  has  been  repeatedlv  recognised, 
fettt  it  does  not  appear  as  yet  to  hiLve  been  carried  to  the  extent  of 
declaring  the  pledge  altogether  a  tortious  proceeding,  so  that  the  title 
is  not  good  in  the  pledgee  even  to  the  extent  of  the  lien  of  the  factor,  or 
so  that  the  principal  may  maintain  an  action  against  the  pledgee  with- 
out discharging  the  lien,  or  at  least  giving  the  pledgee  a  right  to 
recover  the  amouni  of  the  lien  in  the  damages^  But»  in  the  6th  edition,  by 
Mr.  Bennett,  it  is  added, — ''Later  decisions  have,  however,  ful]^ 
settled  the  law,  that  a  pledge  by  a  factor  of  his  principal's  goods  is 
wholly  tortious,  and  the  owner  may  recover  the  whole  value  of  the 
pledgee,  without  any  deduction  or  recoupment  for  his  claim  against  the 
factor.^^  And  I  may  mention  that  I  have  reason  to  believe  this  rule 
aa  to  liens  was  acted  upon  a  few  days  ago  in  the .  (yoart  of  Queen's 
Bench.(a) 

But  it  ia  said  that  the  maintenance  of  sooh  a  rule  in  respect  of 

(a)  BUM  «.  Springftold,  9  Law  T.  H.  8. 126. 


JOHNSON  V.  STEAR.    31.  T.  1863. 


pledges  is  inconsistent  witli  Chinery  v.  Viall,  mentioned  by  my  Lord. 
It  seems  to  me,  however,  that  the  decision  of  that  case  does  not 
interfere  with  the  general  rale  as  to  damages  in  trover,  but  only 
establishes  a  further  exception  in  the  peculiar  and  somewhat  anoma- 
lous case  of  an  unpaid  vendor,  whose  right  in  all  cases  has  been 
deemed  to  exceed  a  lien :  see  Blackburn  on  Contracts,  p.  820.  I  can- 
not, however,  think,  that  this  exception  can  be  properly  extended  to 
the  case  of  a  pledgee.  An  unpaid  vendor  has  rights  independent  of 
and  antecedent  to  his  lien  for  the  purchase-money.  But  the  property 
of  a  pledgee  is  a  mere  creature  of  the  transaction  of  bailment;  and,  if 
the  bailment  is  terminated,  must  surely  perish  with  it.  Accordingly, 
*34m  ^*  ^®  ^^^  ^°  Story  on  *Bailments,  §  827, — "  It  has  been  inti- 
-'  mated  that  there  is,  or  may  be,  a  distinction  favourable  to  the 
pledgee,  which  does  not  apply,  or  may  not  apply,  to  a  factor,  since 
the  latter  has  but  a  lien,  whereas  the  former  has  a  special  property  in 
the  goods.  It  is  not  very  easy  to  point  out  any  substantial  distinction 
between  the  case  of  a  pledgee  and  the  case  of  a  factor.  The  latter 
holds  the  goods  of  his  principal  as  a  security  and  pledge  for  his 
advances  and  other  dues.  He  has  a  special  property  in  them,  and 
may  maintain  an  action  for  any  violation  of  this  possession,  either  by 
the  principal  or  by  a  stranger.  And  he  is  generally  treated,  in  judi- 
cial discussions,  as  in  the  condition  of  a  pledgee."  Again,  in  §  299, — 
•*As  possession  is  necessary  to  complete  the  title  by  pledge,  so,  by 
the  common  law,  the  positive  loss  or  the  delivery  back  of  the  posses- 
sion of  the  thing  with  the  consent  of  the  pledgee,  terminates  his  iitleP 
And,  further,  in  the  same  section, — "If  the  pledgee  voluntarily,  by 
his  own  act,  places  the  pledge  beyond  his  own  power,  as,  by  agreeing 
that  it  may  be  attached  at  the  suit  of  a  third  person,  that  will  amount 
to  a  waiver  of  his  pledge."(rt) 

It  should  seem,  then,  that  the  bailment  in  the  present  case  was 
terminated  by  the  sale  before  the  stipulated  time ;  and,  consequently, 
that  the  title  of  the  plaintiff  to  the  goods  became  as  free  as  if  the  bail- 
ment had  never  taken  place.  If  he  had  brought  an  action  against  an 
innocent  vendee,  the  passage  I  have  already  cited  from  Story,  §  325, 
demonstrates  that  he  might  have  recovered  the  absolute  value  of  the 
goods  as  damages.  Why  should  he  be  in  a  worse  condition  in 
respect  of  an  action  against  the  pledgee  who  has  violated  the  contract 
of  pledge? 

The  true  doctrine,  as  it  seems  to  me,  is,  that,  whenever  the  plaintiff 
♦3411  ^^^^^  ^^^®  resumed  the  property,  if  he  *could  lay  his  hands 
■*  on  it,  and  could  have  rightfully  held  it  when  recovered  as  the 
full  and  absolute  owner,  he  is  entitled  to  recover  the  value  of  it  as 
damages  in  the  action  of  trover,  which  stands  in  the  place  of  such 
resumption. 

In  the  present  case,  I  think  it  plain  that  the  bailment  having  been 
terminated  by  the  wrongful  sale,  the  plaintiff  might  have  resumed 
possession  of  the  goods  freed  fVom  the  bailment,  and  might  have  held 
fthem  rightfully  when  so  resumed,  as  the  absolute  owner,  against  all 
(ihe  world.  And  I  therefore  think  he  ought  to  recover  the  lull  value 
of  them  in  this  action. 

Nor  ean  I  see  any  iajustioe  in  the  defendant's  bring  thos  remitted 

a)  doe  WUtiker  v.  Sammr,  SO  PUk.  B.  890. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        341 


to  his  unsecured  debt,  because  his  lien  has  been  forfeited  by  his  owd 
mlation  of  the  conditions  on  which  it  was  created. 

Rule  absolute  to  reduce  the  damages  to  40«. 


In  the  principal  case  the  defendant 
sold  the  goods,  pledged  with  hin)  to 
Becure  a  loan,  before  the  day  of  repay- 
ment had  arrived.  Although  an  action 
of  trover  was  brought  for  the  wrongful 
conversion,  the  damages  were  limited 
to  such  as  could  have  been  recovered 
bad  the  action  been  one  for  the  breach 
of  the  contract ;  and  as  the  plaintiff's 
assignor  had  no  intention,  being  a  hank- 
nipt,  to  repay  the  loan,  the  damages 
were  merely  nominal. 

In  Donald  v.  Suckling,  the  plaintiff 
pledged,  as  security  for  the  payment 
at  maturity  of  a  bill  of  exchange  en- 
dozBed  by  him,  debentures  with  a 
broker  who  discounted  the  draft.  Be- 
fore it  fell  due,  the  broker  repledged 
the  debentures  to  the  defendant  as  se- 
euritj  for  a  loan  to  himself  larger  than 
the  amount  of  plaintiff's  draft.  The 
ooort  refused  to  sustain  an  action  of 
detinne  for  the  debentures,  on  the 
ground  that  the  plaintiff  was  not  enti- 
tled to  reclaim  them  until  he  had  paid 
the  debt  to  secure  which  they  were 
originally  ^ven,  notwithstanding  the 
broker's  violation  of  his  duty  as  a  bailee. 
The  breach  of  duty  did  not  terminate 
the  bailment,  but  only  justified,  as  in 
the  principal  case,  an  action  for  the 
damages  which  the  plaintiff  had  actu- 
tUy  suffered :  L.  B.  1  Q.  B.  585.  In 
Halliday  v.  Holgate,  certificates  of 
shares  in  a  mining  company  were 
pledged  to  secure  the  repayment  of  a 
loan,  advanced  without  mention*  of  the 
period  of  credit.  The  pledgee,  after 
the  bankruptcy  of  the  pledgor,  sold 
vithout  a  demand  for  repayment,  and 
without  notice  of  his  intention  to  sell, 
apon  the  bankrupt  or  his  assignee,  a 
portion  of  the  certificates.  The  as- 
signee, without  tendering  payment, 
brought  trover  against  the  pledgee  for 


the  value  of  the  certificates.  The 
Court  of  Exchequer  nonsuited  the 
plaintiff,  and  this  decision  was  affirmed 
on  appeal  in  the  Exchequer  Chamber : 
37  L.  J.  R.  Ex.  174 ;  L.  R.  3  Ex.  299. 

These  decisions  indicate  the  direc- 
tion of  the  development  which  the  law 
is  at  present  undergoing.  As  the 
modern  •  inclination  is  to  assimilate 
the  forms  of  action,  the  measure  of 
damages  for  the  breach  of  the  bailment 
is  equalized  in  the  actions  of  assumpsit, 
trespass,  and  trover,  which  are  allowed 
to  be  maintained,  and  the  action  of  de- 
tinue is  refused,  in  part  upon  the  ground 
that  were  it  sustained,  a  different  esti- 
mate would  be  established. 

The  American  decisions  follow,  in 
the  main,  the  English  precedents,  and 
commend  the  rule,  as  sound,  which 
Hmits  the  damages  to  the  value  of  the 
pledge  at  the  time  of  the  wrongful  con- 
version. Thus  the  decision  in  the 
principal  case  was  expressly  recognised 
and  acted  upon  in  The  Baltimore  Mar 
rine  Insurance  Company  v.  Dalrymple. 
There  the  stock  pledged  as  collate- 
ral  security  for  the  repayment  of  a 
loan,  was,  after  demand,  and  defiELult, 
put  up  for  sale,  and  bought  in  by  the 
pledgee,  who  subsequently  sold  it  at 
private  sale.  It  was  held  to  be  at  the 
pledger's  election  to  treat  the  first  sale 
as  a  conversion,  or  as  a  continuation  of 
the  bailment,  (Middlesex  Bank  v. 
Minot,  4  Met.  Mass.  825).  The 
second  sale  was  a  conversion,  but  the 
damages  were  limited  to  the  value  of 
the  stock  at  the  time  of  the  sale,  over 
and  above  the  amount  of  the  loan  which 
it  was  given  to  secure :  25  Md.  (1866) 
269;  Bulkeley.  v.  Welch,  31  Conn. 
(1863)  339. 

In  Lewis  v,  Mott,  Brown  pledged 
with  How,  Illinois  scrip  for  $2000  as 


341c  VANQUELIN  v.  BOUARD.    M.  T.  1863. 


R.  C.  F.  VANQUELIN  v.  BOUARD.    Nov.  19. 

The  first  ooant  of  the  declaration  stated  that  one  V.,  a  French  subject  domiciled  in  Fraaee, 
drew  certain  bills  at  Orleans  upon  the  defendant  at  Paris ;  that  V.  endorsed  them  to  one  B. ; 
that,  the  bills  being  dishonoured,  B.  obtained  judgment  against  the  defendant  and  V.  in  an  action 
thereon  in  the  court  of  the  Tribunal  of  Commerce  of  the  department  of  the  Seine,  a  court  of  com- 
petent jurisdiction  In  that  behalf;  that,  according  to  the  laws  of  France,  in  ca^e  V.  satisfied  the 
judgment,  the  defendant  would  become  liable  to  pay  V.  the  am«unt  with  interest,  and  V.  would 
beeome  entitled  to  the  benefit  of  the  judgment  against  the  defendant,  and  would  be  substituted 
for  B.  in  all  his  rights  upon  the  same  against  the  defendant,  and  entitled  to  enforce  the  same 
for  his  own  benefit  against  the  defendant;  that  afterwards  and  whilit  the  judgment  was  in  fall 
force  and  unsatisfied  bj  either  the  defendant  or  V.,  the  latter  died  in  France,  and  the  plaintiff, 
his  widow,  became,  in  accordance  with  the  laws  of  France,  "  the  donee  of  the  universality  of  the 
real  and  personal  estates  belonging  to  the  succession  of  V.  at  his  death,  and  thereby,  end  accord- 
ing to  the  laws  of  the  said  empire,  all  rights,  claims,  and  causes  of  action,  and  also  all  liabilities 
and  obligations  of  V.,  Tested  in  her  personidly  and  absolutely,  and  she  became  according  to  the 
•aid  laws  liable  personally  upon  the  said  judgment,  and  also  entitled  personally  and  in  her  own 
name  to  sue  for  and  enforce  all  the  rights  and  claims  of  V.,  and  she  was,  according  to  the  said 
laws,  substituted  for,  and  placed  in  the  same  position  with  respect  to  the  defendant  as  regards 
the  said  bills  and  the  said  judgment  thereon,  to  all  intents  and  purposes  as  V.  had  been  in  his 
lifetime; "  that,  afterwards,  the  plaintiff  was  obliged  to  pay  and  did  pay  the  amount  of  the  said 
judgment  and  interest,  and  thereupon  B.  delivered  to  her  the  bills  and  the  record  of  the  judg- 
ment, and  the  plaintiff  then  became  and  was,  according  to  the  laws  of  France,  entitled  to  the 
benefit  of  all  the  rights  of  B.  upon  the  judgment  against  the  defendant,  and  entitled  to  enforce 
the  same  against  the  defendant,  and  to  be  substituted  for  B.  in  all  his  rights  against  the  defend- 
ant in  re8)>ect  of  the  judgment,  and  the  defendant  became  indebted  and  liable  to  pay  the  plain- 
tiff the  amount  so  paid  by  her,  with  interest;  that,  the  defendant  having  neglected  to  pay  the 
moneys  so  due  from  him  to  the  plaintiff,  the  latter,  in  order  to  keep  alive  the  liability  of  the 
defendant,  and  to  prevent  the  same  from  being  barred  by  lapse  of  time,  and  also  in  order  to 
give  effect  to  and  enforce  her  claim  upon  the  said  judgment,  took  proceedings  in  the  Tribunal 
Civil  of  the  First  Instance  of  the  department  of  the  Seine,  being  a  court  of  competent  jurisdic- 
tion in  that  behalf,  and,  according  to  the  practice  and  procedure  of  that  court,  on  the  2d  of  April, 
1862,  by  adjudication  of  the  court,  an  injunction  was  made  to  the  defendant,  in  the  name  of 
law  and  justice,  to  pay  within  twenty-four  hours  to  the  plaintiff  certain  sums  for  principal, 
interest,  and  expenses ;  that  all  conditions  precedent,  Ac,  had  been  complied  with  to  entitle  the 
plaintiff  according  to  the  laws  of  France  to  be  paid  those  several  sums ;  and  that  they  remained 
unpaid. 

Held,  on  demurrer  to  this  count,  that  it  sufficiently  disclosed  a  right  in  the  plaintiff  te  sue  in 
respect  of  the  cause  of  action  therein  mentioned  in  the  French  courts  in  her  own  name,  and 
consequently  that  it  was  competent  to  her  to  maintain  an  action  %ere  in  respect  of  the  payment 
so  made  by  her  after  her  husband's  death,  without  taking  out  letters  of  administration  in  this 
country. 

To  this  count  the  defendant  pleaded  that  the  bills  were  not  drawn  at  Orleans,  aa  alleged. — 
Held,  bad. 

He  further  pleaded  (11),  that  the  sums  alleged  to  be  due  by  virtue  of  the  said  judgment  and 
injunction,  and  under  the  circumstances  mentioned  in  the  count,  would,  according  to  the  laws  of 
France,  form  part  of  the  succession  of  the  deceased,  and  be  assets  in  the  hands  of  the  plaintiff 
as  such  donee  of  the  universality  of  the  real  and  personal  estates  belonging  to  the  succession  of 
the  deceased,  to  be  administered,  such  donee  being,  according  to  the  said  laws,  the  represen- 
tative of  the  deceased  lit  France,  and  entitled  to  the  said  sums  of  money  in  her  represent atire 
character,  and  not  otherwise : — Held,  a  bad  plea,  upon  the  same  ground  that  the  count  was 
held  good. 

He  further  pleaded  (12),  that  the  judgment  in  the  first  count  mentioned  was  a  judgment  by 
default  for  want  of  appearance  by  the  defendant  in  the  court  of  the  Tribunal  de  Commerce,  and 
by  the  law  of  France  would  become  void  as  of  course  on  an  appearance  being  entered : — Held, 
bad  ;  for  that  the  possible  contingency  of  the  judgment  of  the  foreign  court  being  set  aside  there, 
is  no  answer  to  an  action  to  enforce  it  here. 

He  further  pleaded  (13),  that  the  court  of  the  Tribunal  de  Commerce  was  not  a  court  of  com- 
petent jurisdiction  according  to  the  French  law,  because  the  defendant  was  not  a  trader  when 
he  accepted  the  bills,  and  because  the  bills  falsely  purported  to  be  drawn  at  Orleans,  whereas 
they  wore  not  drawn  there,  nor  was  the  drawer  domiciled  there  at  the  time  the  bills  were  drawn : 
— Held,  bad, — it  sufficiently  appearing  that  the  Tribunal  de  Commerce  had  jurisdiction  over 
the  subject-matter  of  the  suit,  and  that  the  matters  alleged  in  the  plea  were  matters  which  (if 
any  defence)  mi^ght  and  ought  to  have  been  set  up  by  way  of  defence  in  that  court 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)     341cl 

The  aaoooi  count  stated,  that  certain  billa  of  exchange  were  drawn  npon  the  defendant  by  Y,, 
and  accepted  by  him  and  dishonoured,  that  V.  died,  and  the  plaintiff  was  according  to  the  laws 
of  France  "  the  donee  of  the  uniTcrsality  of  the  personal  and  real  estates  belonging  to  the  sue- 
cession  of  V.,  and  thereupon  became  entitled  to  all  debts,  claims,  and  causes  of  action  which 
the  deceased  was  entitled  to,  and  the  same  became  and  were  according  te  the  said  laws  vested 
in  the  plaintiff  personally  and  absolutely,  in  the  same  manner  as  they  were  vested  in  V.,  and 
the  plaintiff  was  entitled  to  demand  and  sue  for  the  same  in  her  own  name  and  in  her  own  rights 
and  the  claims  and  rights  of  the  deceased  npon  the  said  bills  became  vested  in  the  plaintiff,  uid 
she  became  entitled  to  sue  the  defendant  thereupon  in  her  own  name  and  in  her  own  right : — 
Held,  good, — it  sufficiently  appearing  that  the  plaintiff  was  entitled  to  sue  npon  the  bills  in  her 
own  right ;  the  fact  of  her  being  the  donee  of  the  universality  of  the  personal  and  real  estates 
belonging  to  the  succession  of  her  deceased  husband  giving  her  by  the  law  of  France  rights 
different  from  those  which  an  executor  or  administrator  has  in  this  country. 

For  the  same  reasons,  a  plea  (16)  to  the  second  count,  that  the  plaintiff  was  not  execntor  or 
administrator  of  V.,  deceased,  was  held  bad. 

The  IStb  plea, — to  both  counts,— stated  that  V.  and  the  defendant,  in  France,  agreed  to  pur- 
chase for  their  joint  benefit  a  debt  due  to  one  Q.,  and  charged  upon  certain  property  in  France; 
that  it  was  agreed  upon  between  them  that  V.  should  advance  the  purchase-money,  and  that 
the  defendant  should  accept  the  bills  in  the  declaration  mentioned  as  a  security  to  the  deceased  in 
ease  the  debt  should  not  realize  the  amount  of  the  purchase-money ;  that,  except  aa  aforesaid, 
there  was  never  any  value  or  consideration  for  the  acceptance  of  the  bills ;  that  V.  recovered 
a  large  snxn  in  respect  of  the  said  debt,  and  retained  the  same;  and  that  the  share  thereof 
belonging  to  the  defendant,  and  so  retained  by  V.,  was  more  than  sufficient  to  satisfy  the  claim 
of  V.  in  respect  of  the  said  judgment  and  bills : — Held,  that  this  plea  was  a  good  answer  to  the 
eltim  in  the  second  count,  as  amounting  to  an  allegation  that  the  bills  were  accommodation 
bills  and  that  there  was  no  value  or  consideration  for  their  acceptance ;  but  that  it  afforded  no 
answer  to  the  first  count. 

That  which  constitutes  a  defence  in  the  foreign  court  is  not  pleadable  in  an  action  upon  tht 
indgment  in  the  courts  of  this  country. 

The  rule,  that,  in  order  to  entitle  a  party  to  sue  in  any  court  of  this  country,  whether  of  law 
or  equity,  in  respect  of  the  personal  rights  of  a  testator  or  intestate,  he  must  appear  to  have 
obtained  probate  or  letters  of  administration  from  the  proper  court  here,  is  subject  to  this  qua* 
lification,  that  he  is  suing  in  right  of  the  deceased. 

The  first  count  of  the  declaration  stated  that  theretofore,  to  wit,  in 
the  year  1840,  at  Orleans,  in  the  empire  of  France,  one  J.  A.  F.  Van- 
quelin,  being  a  French  *8ubject,  and  domiciled  in  the  said  r^o^o 
empire,  by  three  certain  bills  of  exchange  directed  to  the  •■ 
defendant  at  Paris,  required  the  defendant  to  pay  to  his  the  said  J.  A. 
F.  Vanquelin's  order,  at  the  several  times  therein  mentioned,  certain 
sums  of  money  amounting  in  the  *whole  to  the  sum  of  14,000  rmoAQ 
francs  in  money  of  the  said  empire,  and  the  defendant,  in  Paris,  *■ 
accepted  the  said  bills,  and  the  said  J.  A.  F.  Vanquelin  endorsed  the 
said  bills  in  France  aforesaid  to  one  Bolli ;  and  the  said  bills  arrived 
at  maturity,  and  according  to  the  laws  of  the  said  empire  the 
defendant  was  under  the  primary  obligation  to  honour  and  pay  the 
amount  of  the  said  draft?,  and  the  said  J.  A.  F.  Vanquelin  was 
also  liable  as  drawer  of  the  same  to  pay  and  take  up  the  same  in  case 
the  defendant  dishonoured  the  same;  and  the  said  bills  were  all 
dishonoured  by  the  defendant;  and  afterwards,  according  to  the 
laws  of  the  said  empire,  the  said  Bolli,  as  the  holder  and  endorsee 
of  the  said  bills,  took  proceedings  in  the  Court  of  the  Tribunal  of 
Commerce  of  the  department  of  the  Seine,  which  was  a  court  of 
competent  jurisdiction  in  that  behalf,  against  the  defendant  as  acceptor 
and  the  said  J.  A.  F.  Vanquelin  as  drawer  of  the  said  bills,  in  order  to 
enforce  payment  thereof;  and  certain  proceedings  were  thereupon  duly 
had  in  the  said  court,  according  to  the  laws  of  the  said  empire,  and  accora* 
ing  to  the  *practice  and  procedure  of  the  said  court ;  and  a  judg-  r^toAA 
ment  of  the  said  court  was  obtained  by  the  said  Bolli  against  ^ 


344  •  VANQUELIN  v.  BOUARD.    M.  T.  1863. 

the  said  J.  A.  F.  Vanquelin  and  the  defendant;  and  by  the  said  judg- 
ment it  was  adjudged  and  considered  that  the  defendant  and  the  said 
J.  A.  F.  Vanquelin  were  indebted   to   the  said  BoUi  jointly  and 
severally  in  the  said  amount  of  the  said  bills,  namely  14,000  francs  of 
money  of  the  said  empire,  being  equal  to  560?.  sterling  money  of 
Great   Britain,  together  with   interest   at  the  rate   of  6   per   cent, 
per  annum  from  the  day  of  the  maturity  of  each  bill  till  judg- 
ment;  and  the   defendant  and   the   said  J.  A.  F.  Vanquelin  were 
condemned  to  pay  the  said  amount,  together  with  costs ;  and  there- 
upon, according  to  the  laws  of  the  said  empire,  the  said  J.  A.  F. 
Vanquelin  was,  according  to  the  said  laws,  under  an  obligation  to* 
satisfy  the  amount  of  the  said  judgment,  being  the  said  principal 
sums  and  interest,  and  also  further  to  pay  interest  upon  the  amount 
of  the  said  judgment  at  the  said  rate  till  payment ;  and  also,  according 
to  the  said  laws,  the  defendant  was  liable  to  the  said  J.  A.  F.  Van- 
quelin for  the  amount  of  the  said  bills,  and  in  case  the  said  J.  A.  Van- 
quelin paid  the  amount  of  the  judgment  to  the  saidBolli,  the  defend- 
ant would  become  liable  to  pay  the  said  J.  A.  F.  Vanquelin  the 
amount  of  the  said  judgment,  together  with  interest  upon  the  same 
at  the  rate  of  6  per  centum  per  annum  until  payment,  and  the  said 
J.  A.  F.  Vanquelin  would  become  entitled  to  the  benefit  of  the  said 
judgment  against  the  defendant,  and  would  be  substituted  for  the 
said  Bolli  in  all  his  rights  upon  the  same  against  the  defendant,  and 
entitled  to  enforce  the  same  for  his  own  benefit  against  the  defendant : 
Averment,  that  afterwards,  and  whilst  the  said  judgment  was  in  full 
force  and  unsatisfied  by  either  the  defendant  or  the  said  J.  A.  F.  Van- 
quelin, the   said  J.  A.  F.  Vanquelin  died  within  the  said  empire 
♦3451    *^^  France,  and  the  plaintiff  was,  in  accordance  with  the  laws 
■'   of  the  said  empire,  the  donee  of  the  universality  of  the  real  and  per- 
sonal estates  belonging  to  the  succession  of  the  said  J.  A.  F,  Vanquelin  at 
his  death,  and  thereby ,  and  according  to  the  laws  of  the  said  empire,  all 
rights,  claims,  and  causes  of  action,  and  also  all  liabilities  afid  obHgaiions 
of  the  said  «7.  A.  F.  Vanquelin  vested  in  the  plaintiff  personally  and 
absolutely,  and  the  plaintiff  became,  according  to  the  said  laws,  liable 
personally  upon  the  said  judgment,  and  also  entitled  personally  and  t'n 
her  oum  name  to  sue  for  and  enforce  all  the  rights  and  claims  of  the  said 
J.  A.  F.  Vanquelin,  and  the  plaintiff  was  according  to  the  said  laws 
substituted  for  and  placed  in  the  same  position  with  respect  to  the 
defendant  as  regards  the  said  bills  of  exchange  and  the  said  judgment 
thereon  to  all  intents  and  purposes,  as  the  said  J.  A.  F.  Vanquelin  had 
been  in  his  lifetime:  That,  afterwards,  and  whilst  the  said  judgment 
was  in  full  force  and  unsatisfied,  and  the  plaintifi;' and  defendant  were 
both  liable  thereupon,  the  plaintiff,  in  accordance  with  the  said  laws, 
was  obliged  to  pay  and  did  pay  the  full  amount  of  the  said  judgment 
and  all  interest  due  thereon :  and  thereupon  the  said  Bolli,  according 
to  the  laws  of  the  said  empire,  delivered  to  the  plaintiff'  the  said  bills 
of  exchange  and  the  record  of  the  said  judgment,  and  the  plaintiflF 
then  became  and  was  and  still  is  according  to  the  laws  of  the  said 
empire  entitled  to  the  benefit  of  all  the  rights  of  the  said  Bolli  upon 
the  said  judgment  against  the  defendant,  and  entitled  to  enforce  the 
same  against  the  defendant,  and  to  be  substituted  for  the  said  Bolli  in 
all  his  said  rights  against  the  defendant  in  respect  of  the  said  judg- 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)        346 

ment,  and  the  defendant  became  and  was  indebted  and  liablp  to  pay' 
to  the  plaintiff  the  amount  so  paid  by  the  plaintiff  upon  the  said 
judgment,  together  with  6  per  centum  per  annum  interest  *there-   r^QAa 
upon  until  payment :  That  afterwards,  and  before  this  suit,  the  L  «>  ^ 
defendant  having  neglected  and  refused  to  pay  to  the  plaintiff  the  said 
moneys  so  due  from  him  to  the  plaintiff  as  aforesaid,  the  plaintiff  in 
order  to  keep  alive  the  said  liability  of  the  defendant,  and  to  prevent 
the  same  being  barred  by  lapse  of  time,  and  also  in  order  to  give  effect 
to  and  enforce  her  said  claim  against  the  said  defendant  for  the  said 
moneys  due  upon  the  said  judgment,  and  the  further  interest  due  upon 
the  same,  took  proceedings  in  the  said  court,  namely,  the  Tribunal 
Civil  of  the  First  Instance  of  the  department  of  the  Seine,  being  a 
court  of  competent  jurisdiction  in  that  behalf,  and  certain  proceed- 
ings were  thereupon  had  in  the  said  court,  according  to  the  laws  of 
the  said  empire  and  the  practice  and  procedure  of  the  said  court, 
against   the  defendant  at  the  suit  of  the  plaintiff;   and  thereupon, 
according  to  the  practice  and  procedure  of  the  said  court,  that  is  to 
say,  on  the  2d  of  April,  1862,  by  adjudication  of  the  said  court,  an 
injunction  was  made  to  the  defendant  in  the  name  of  law  and  justice 
to  pay  within  twenty-four  hours  to  the  plaintiff  the  several  sums  of 
money  following,  that  is  to  say, — ^first,  14,000  francs  of  money  of  the  said 
empire,  being  the  principal  amount  of  the  said  bills  of  exchange, — 
secondly,  17,640  francs  of  money  of  the  said  empire  for  interest  upon 
the  same  at  the  rate  of  6  per  centum  per  annum  from  the  2d  day  of 
February,   1841,  to  the  2d  day  of  February,  1862,— thirdly,  the 
interest  from  the  said  2d  of  February,  1862,  until  payment,  at  the 
said  rate, — fourthly,  152/r.  60c.  of  money  of  the  said  empire,  for 
costs;   and,  failing  to  do  so,  it  was  adjudged  and  notified  to  the 
defendant  that  he  would  be  constrained  to  do  so  by  all  lawful  means 
and  by  arrest  of  his  body :  And  that  all  conditions  precedent  were 
performed,  and  all  times  elapsed,  and  all  matters  and  tnings  had  been 
♦done  and  happened,  necessary  to  entitle  the  plaintiff  according   r*Q^7 
to  the  laws  of  the  said  empire  to  be  paid  the  said  sums  of  ^ 
money,  amounting  in  the  whole  to  the  equivalent  in  sterling  money 
of  Great  Britain  of  1285/.  10*.  lOrf.,  which  the  defendant  was  so 
enjoined  to  pay  to  her  as  aforesaid  ;  and  that  the  defendant's  liability 
to  pay  the  same  still  was,  at  the  commencement  of  this  suit,  and  still 
is,  in  full  force  and  effect ;  and  the  defendant  wholly  refuses  to  pav 
the  same,  or  any  part  thereof,  and  the  whole  remains  due  and  unpaid. 
The  second  count  stated,  that  theretofore,  to  wit,  at  Orleans,  in  the 
empire  of  France,  one  J.  A.  F.  Vanquelin,  by  his  three  several  bills 
of  exchange,  now  overdue,  directed  to  the  defendant,  at  Paris,  in  the 
said  empire,  reC[uired  the  defendant  to  pay  to  his  the  said  J.  A.  F. 
Vanquelin's  several  orders  the  three  several  sums  of  money  following, 
that  is  to  say,  one  bill  for  5000  franca  of  the  money  of  the  said  empire, 
another  bill  for  4000  francs  of  the  said  money,  and  a  third  bill  for 
5000  francs  of  the  said  money,  amounting  in  the  whole  to  14,000 
francs,  being  of  the  equivalent  value  of  560t  sterling  money  of  Great 
Britain,  at  the  several  dates  therein  mentioned;  and  the  defendant 
accepted  the  said  bills ;  and  the  defendant  thereupon  became  liable 
according  to  the  laws  of  the  said  country  to  honour  and  pay  the  said 
drafts  at  maturity ;  and  the  defendant  dishonoured  the  said  drafts  and 


347  VANQUELIN  v.  BOUARD.     M.  T.  1863. 

each  of  them ;  and  thereupon,  according  to  the  laws  of  the  said  em- 
pire, the*defendant  became  indebted  to  the  said  J.  A.  F.  Vanquelin, 
m  the  several  amounts  of  the  said  bills,  and  liable  to  pay  to  him  the 
said  amounts  of  each,  together  with  6  per  cent,  interest  thereon  until 
payment ;  and  afterwards,  aud  before  this  suit,  and  whilst  the  whole 
of  the  said  several  principal  sums  due  from  the  defendant  to  the  said 
J.  A.  F.  Vanquelin,  together  with  the  said  interest,  were  due  and 
^oAQ^  wholly  unpaid,  *and  the  defendant's  liability  to  pay  the  same 
J  and  each  of  them  was  in  full  force  and  e^ect,  the  said  J.  A.  F. 
Yanquelin  died,  and  the  plaintiff  was,  according  to  the  laws  of  the 
said  empire,  the  donee  of  this  universality  of  the  personal  and  real  estates 
belonging  to  the  succession  of  the  said  J,  A.  F,  Vanquelint  and  thereupon 
became  entitled  to  all  debtSy  claims,  and  causes  of  action  which  the  said  «/l 
A.  F.  Vanquelin  was  entitled  to,  and  the  same  became  and  were  according 
to  the  said  laws  vested  in  the  plaintiff  personally  and  absolutely^  in  the 
same  manner  to  all  intents  and  purposes  as  they  were  vested  in  the  said 
J.  A.  F.  Vanquelin,  and  the  plaintiff  was  and  is  entitled  to  demand 
and  sue  for  the  same  in  her  own  name  and  in  her  own  right,  and  the 
claims  and  rights  of  the  said  J.  A.  F.  Vanquelin  upon  the  said  several 
bills  of  exchange  became  vested  in  the  plaintiff,  and  the  plaintiff  be- 
came entitled  to  sue  the  defendant  thereupon  in  her  own  name  and  in 
her  own  right:  Averment,  that  the  defendant  had  wholly  refused 
or  neglected  to  pay  the  plaintiff  the  amount  of  the  said  bills  and 
interest,  or  any  part  thereof;  and,  at  the  commencement  of  this  suit, 
the  whole  remained  unpaid,  and  the  defendant  was  justly  indebted  to 
the  plaintiff  in  respect  of  the  premises  and  according  to  the  said  laws 
in  the  sum  of  31,990  francs  in  money  of  the  said  empire,  for  the  prin- 
cipal of  the  said  three  bills  of  exchange,  and  interest  thereon  at  the 
said  rate,  being  equal  to  12792.  10s.  6d.  sterling  money  of  Great 
Britain ;  and  that  the  defendant  had  neglected  and  refused  to  pay  the 
same  or  any  part  thereof. 

The  third  count  was  for  money  payable  by  the  defendant  to  the 
plaintiff  for  money  paid  by  the  plaintiff  for  the  defendant  at  his  re- 
quest, and  also  for  interest  for  the  forbearance  at  interest  at  the 
aefendant's  request  of  moneys  due  and  owing  from  the  defendant  to 
*3491  ^^^  plaintiff,  and  also  for  money  found  to  be  due  *from  the 
-I  defendant  to  the  plaintiff  upon  accounts  stated  between  them, 
and  also  for  money  promised  by  the  defendant  to  the  plaintiff  to  be 
paid  in  accordance  with  a  certain  judgment  of  a  certain  court  in 
France  whereby  the  defendant  was  declared  and  adjudged  to  be 
indebted  to  the  plaintiff  in  a  large  sum  of  money,  and  was  enjoined 
thereby  to  pay  the  same  to  the  plaintiff.    Claim  20002. 

The  defendant  demurred  to  the  first  count,  on  the  ground  that  ''the 
said  count  does  not  allege  that  the  plaintiff  is  the  legal  personal  repre- 
sentative of  the  said  deceased  in  this  country,  nor  any  legal  title  in  the 
plaintiff  to  sue  in  this  country  upon  the  said  judgment ;  and  also  that 
the  said  count  does  not  allege  that  the  judgment  first  mentioned 
therein  was  final  and  definitive."    Joinder. 

He  also  demurred  to  the  second  count,  on  the  ground  that  "  the  said 
oount  does  not  allege  that  the  plaintiff  is  the  legal  personal  represent- 
ative of  the  said  deceased  in  this  country,  nor  any  legal  title  in  the 
plaintiff  to  sue  upon  the  said  bills  in  this  country.^'    Joinder. 


COiMMON  BENCH  REPORTS.     (15  J.  SCOTT.    N.  8.)        349 

The  defendant  also  pleaded, — first,  to  the  first  count,  that,  though 
the  said  J.  A.  F.  Vanquelin  drew  the  said  bills  of  exchange,  yet  he 
did  not  draw  them  at  Orleans,  as  alleged. 

Eleventh  plea,  to  the  first  count,  that  the  sums  of  money  alleged 
to  be  due  by  virtue  of  the  said  judgment  and  the  said  injunction  and 
under  the  circumstances  in  the  said  count  mentioned,  would,  accord- 
ing to  the  laws  of  the  said  empire  of  France,  form  part  of  the  succes- 
sion of  the  said  J.  A.  F.  Yanquelin,  deceased,  and  be  assets  in  the 
hands  of  the  plaintifTas  such  donee  of  the  universality  of  the  real  and 
personal  estates  belonging  to  the  said  succession  of  the  said  deceased 
to  be  administered,  such  donee  being  according  to  the  *said  r^oKA 
laws  the  representative  of  the  said  deceased  in  France,  and  L 
entitled  to  the  said  sums  of  money  in  her  said  representative  capacity, 
and  not  otherwise ;  and  that  the  plaintiff  is  not  in  this  country  tne 
executrix  of  the  last  will  and  testament  of  the  said  J.  A.  F.  Vanque- 
lin, deceased,  or  the  administratrix  of  the  goods,  chattels,  and  credits 
which  were  of  the  said  J,  A.  P.  Vanquelin,  deceased,  at  the  time  of 
his  death. 

Twelfth  plea,  to  the  first  count,  that  the  judgment  in  the  said  count 
first  mentioned,  was  a  judgment  by  default  against  the  defendant  for 
not  appearing  in  the  said  proceedings  in  the  said  Court  of  the  Tribu- 
nal of  Commerce,  and  that,  according  to  the  law  of  France,  the  said 
judgment  and  the  said  injunction  in  the  said  count  mentioned  would 
become  void  and  of  no  effect,  as  of  course,  as  soon  as  the  defendant 
entered  an  opposition  to  the  said  judgment  in  the  said  court  in  which 
the  same  was  obtained. 

Thirteenth  plea,  to  the  first  count,  that  the  said  judgment  of  the 
said  Court  of  the  Tribunal  of  Commerce  was  a  judgment  by  default 
foT  want  of  appearance  by  the  defendant ;  and  that  the  said  court  was 
not  a  court  of  competent  jurisdiction  in  that  behalf,  as  alleged,  accord- 
ing to  the  laws  of  the  said  empire,  because  the  defendant  was  not  a 
trader  when  he  accepted  the  said  bills,  and  because  the  said  bills 
falsely  purport  to  have  been  drawn  at  Orleans,  whereas  the  said  bills 
were  not  drawn  at  Orleans ;  and  that  the  said  J.  A.  F.  Vanquelin  was 
not  there  domiciled  at  the  time  the  said  bills  were  so  drawn  as  aforesaid. 

Sixteenth  plea,  to  the  second  CQunt,  that  the  plaintiff  is  not  in  this 
country  the  executor  of  the  last  will  and  testament  of  the  said  J.  A. 
F.  Vanquelin,  deceased,  or  the  administrator  of  the  goods,  chattels, 
and  credits  which  were  of  the  said  J.  A.  F.  Vanquelin,  deceased,  at 
the  time  of  his  death. 

^Eighteenth  plea,  to  the  first  and  second  counts,  that  the  r^^^i 
said  J.  A.  F.  Vanquelin,  deceased,  and  the  defendant,  in  the  ^ 
said  empire  of  Franoe,  agreed  to  purchase  for  their  joint  benefit  a 
certain  debt  due  to  one  Madame  de  Querecqae,  and  charged  upon 
certain  property  in  France,  at  a  certain  price  which  was  below  the 
amount  of  the  said  debt ;  and  it  was  agreea  between  them  that  the  said 
deceased  should  advance  the  purchase-money,  and  that  the  defendant 
should  accept  the  said  bills  in  the  said  counts  mentioned  as  a  security 
to  the  said  deceased  in  case  the  said  debt  ahould  not  realise  the 
amount  of  the  said  purohaae-monej ;  and  that»  except  aa  aforesaid, 
there  was  never  any  value  or  consideration  for  the  derendant's  accept* 
log  the  said  bills ;  and  that  the  said  deccnurad  recovered  and  receiyea  a 


355  VANQUELIN  v.  BOUARD.    M.  T.  1863. 

The  Attorney-General  v,  Bouwens,  4  M.  &  W.  171,  191,  where  this 
subject  is  very  fully  discussed,  Lord  Abioger,  C.  B.,  says:  "What- 
ever may  have  been  the  origin  of  the  jurisdiction  of  the  ordinary  to 
grant  probate,  it  is  clear  that  it  is  a  limited  jurisdiction,  and  can  be 
exercised  in  respect  of  those  effects  only  which  he  would  have  had 
himself  to  administer  in  case  of  intestacy,  and  which  must  therefore 
have  been  so  situated  as  that  he  could  have  disposed  of  them  in  pioa 
usus.  As  to  'the  locality  of  many  descriptions  of  effects,  household 
and  movable  goods,  for  instance,  there  never  could  be  any  dispute: 
but,  to  prevent  conflicting  jurisdictions  between  different  ordinaries 
with  respect  to  choses  in  action  and  titles  to  property,  it  was  estab- 
lished as  law  that  judgment-debts  were  assets,  for  the  purposes  of 
jurisdiction,  where  the  judgment  is  recorded  ;  leases,  where  the  land 
lies;  specialty-debts,  where  the  instrument  happens  to  be;  and  simple- 
contract-debts,  where  the  debtor  resides  at  the  time  of  the  testator's 
death :  and  it  was  also  decided,  that,  as  bills  of  exchange  and  promis- 
sory notes  do  not  alter  the  nature  of  the  simple-contract  debt,  but  are 
merely  evidences  of  title,  the  debts  due  on  these  instruments  were 
assets  where  the  debtor  lived,  and  not  where  the  instrument  was 
found."  The  first  plea  is  clearly  bad.  [iu^A,  Q.  C,  conceded  that.] 
The  eleventh  plea, — that  the  money  alleged  to  be  due  by  the  law  of 
France  formed  part  of  the  succession  of  the  deceased, — is  also  bad.  It 
*^5fil  ^^®^  °^^  deny  the  *plaintiff*s  liability  to  pay  the  amount  of 
J  the  judgment  to  Bolli,  or  the  fact  of  the  payment;  nor  does  it 
even  allege  that  it  formed  assets  of  the  deceased  in  this  country ;  and, 
for  the  reasons  already  urged,  it  is  no  answer  to  the  plaintiff's  claim 
to  say  that  that  which  she  is  seeking  to  recover  formed  assets  in 
France,  and  that  the  plaintiff  has  not  obtained  probate  or  letters  of 
administration  here.  The  twelfth  plea  addresses  itself  to  the  judg- 
ment of  the  court  of  the  Tribunal  de  Commerce.  As  it  stands,  it  is  a 
valid  judgment:  but  it  is  not  needed  to  sustain  the  present  action. 
The  thirteenth  plea  is  also  clearly  a  bad  plea.  By  the  comity  of 
nations,  the  judgment  of  a  foreign  court  is  held  to  be  conclusive  of 
the  rights  between  the  parties,  unless  it  be  shown  that  there  was  a 
total  absence  of  jurisdiction,  and  that  the  proceeding  was  contrary  to 
natural  justice.  The  courts  here  cannot  try  questions  which  might 
have  been  tried,  and  must  be  assumed  to  have  been  properly  tried,  in 
the  foreign  court.  The  authorities  upon  this  subject  are  so  well 
known  that  it  is  hardly  necessary  to  refer  to  them.  They  will  all  be 
found  collected  in  the  notes  to  The  Duchess  of  Kingston's  Case,  in  2 
Smith's  Leading  Cases,  5th  edit.,  682  et  seq.  The  question  sought  to 
be  raised  by  the  sixteenth  plea,  that  the  plaintiff  is  not  executor  or 
administrator  of  the  deceased  in  this  country,  is  already  disposed  of. 
And  the  eighteenth  plea  discloses  only  matter  which  might  have  been 
urged  by  way  of  defence  in  the  foreign  court. 
Ijush,  Q.  C.  (with  whom  was  H.  J.  Hodgaon)^  contri.(a) — "  The  g^ne* 

(•)  The  poiota  marked  for  ftrgament  ob  tht  put  of  tht  defondant  w«r«  m  fSoUovf  :-* 
^f  <o  tht  dtmnrrtrw  to  lAe  declaration, — As  to  the  flrtt  count, — <'  That  the  plaiatiff  elaias 
MOordiBg  to  tht  lawt  ef  Prance  a«  the  mWersal  donee  of  the  niocenlon  betonging  to  ihm 
deeeand  VanqoeUB,  and  In  thst  oapaeity  aad  in  bis  right  to  eoforee  the  eaid  jvdf OMot  agidnH 
thedefeftdaat;  hni  that,  theagk  the  eomt  stalie  that  the  pfabiatUT  was  bj  the  lavs  af  fkuM 
inhetitated  for  the  deoeated  Vanquelin  with  reipaot  to  the  defondan^  aa  n$u^  the  laid  bllli 
of  ezohange  and  the  lald  Judgment  thereon  to  all  Intents  and  purposes,  it  does  not  appear  thai 


COMMON  BENCH  REPOBTS.    (15  J.  SCOTT.    N.  S.)        356 

ral  rule  is,  that,  in  order  to  sue  in  *any  court  of  thia  countrj,  r^og^ 
whether  of  law  or  equity,  in  respect  of  the  personal  rights  or  L  •*"' 
property  of  a  deceased  person,  the  plaintiff  must  appear  to  have  ob- 
taioed  probate  or  letters  of  administration  in  the  proper  spiritual  court 
of  this  country :"  1  Williams  on  Executors,  6th  *edit^  321 :  and  r«qra 
see  the  judgment  of  Tindal,  C.  J.,  in  Whyte  v.  Eose,  8  Q.  B.  L  ^^ 
493  (E.  C.  L.  B.  vol.  43),  2  Gale  k  D.  812.  It  is  immaterial  where 
the  money  when  recovered  will  b^  administered.  No  doubt,  a  judg- 
mentdebt  constitutes  assets  where  the  judgment  is  recorded:  but  that 
zneaDs  a  judgment  of  a  court  in  this  country.  A  simple-co?>tract-debt 
is  assets  only  where  the  debtor  is  found :  and  here  a  foreign  judgment 
ranks  among  simple-contract-debts.  The  question  is,  does  the  plain- 
tiff claim  the  money  from  the  defendant  as  representing  her  deceased 
husband  ?  If  she  does,  her  title  to  sue  must  be  vouched  by  the  pro* 
per  spiritual  court  here.  The  declaration  is  studiously  ambiguoas  in 
this  respect:  it  alleges  that  the  plaintiff  is  ''the  donee  of  the  univer- 
sality  of  the  real  and  personal  estates  belonging  to  the  succession  of 
Yanqaelin  at  bis  death,  *and  thereby  and  according  to  the  laws  ^#059 
of  France,  all  rights,  claims,  and  causes  of  action,  and  also  all  ^ 
liabilities  and  obligations  of  Yanquelin,  vested  in  the  plaintiff  per- 
sonally and  absolutely,  and  the  plaintiff  became,  according  to  the  said 
laws,  liable  personally  upon  the  said  judgment,  and  also  entitled  per- 
sonally in  her  own  name  to  sue  for  and  enforce  all  the  rights  and 
claims  of  Yanquelin.'^    In  what  does  that  substantiality  differ  from 

tlM  pUintiff  is  tbe  legal  penonal  reprasentatiye  in  this  oountry :  "  and  thai  tha  udd  jadgment 
U  net  ftaal  and  deftniHTe." 

Ai  to  the  leoond  ooont,-^"  That  the  eonnt  states  oertain  aeoeptanoes  of  tht  defendant  in 
fiirov  of  the  deoeaaed  Vanqnelin,  and  that  the  amonnt  thereof  was  dne  to  the  deoeased  at  the 
tine  of  hit  death ;  bat,  thovgh  the  eonnt  shows  that  the  same  passed  to  tht  plaintiff  aooording 
to  Om  lawi  of  France  on  the  death  of  the  said  deoeased,  there  is  no  allegation  that  tht  plaintiff 
is  the  legal  personal  represtntatlTe  In  this  ooantry  of  the  said  deceased." 

Am  to  l&<  doaiifrert  to  ik€  pltatf-^ 

As  to  the  first  plea,—"  That,  an  immaterial  traTerse  cannot  be  demnrred  to ;  but,  as  the  ayer- 
raent  relates  to  a  bill  of  exchange  drawn  in  a  foreign  eonntry,  there  is  nothing  to  show  that  tht 
traTerse  is  immaterial." 

As  to  the  eleyenth  plea,—"  The  plea  alleges  that  the  snbject-matter  of  the  first  count  is  part 
of  the  estate  of  the  deceased  Vanqnelin,  and  that  the  plaintiff  is  entitled  to  it  in  France  in  her 
Wf^tj  as  representing  the  deoeased,  and  not  otherwise;  and,  that  being  so,  the  plaintiff  is 
not  entitled  to  sne  in  her  own  right  in  this  country.  Her  haying  in  her  reprasentatiye  capacity 
b  Prance  discharged  the  liability  of  the  deceased,  cannot  pat  her  in  a  bettor  position  than  if 
the  dseeastd  himself  had  discharged  it  The  eonnt  shows  that  the  plaintiff  snes  only  in  right 
•f  the  deceaaed,  and  does  not  ayer  that  she  is  his  legal  personal  repreoenlatiye  in  this  country."' 

As  to  the  tvrifth  plea,—"  The  plea  shows  that  the  jndgnent  declared  npea  Is  not  bindings 
liBse  it  would  beeome  yold  and  of  no  effect,  as  of  ooorse,  upon  tht  defiradaat  manly  tnlsring 
■a  opposition  to  it    This  is  not  like  a  judgment  by  default  for  non<appearanct  in  th\»  country."' 

As  to  tht  thfateentb  plea,—"  Hie  count  alleges  that  tht  said  court  was  a  court  of  oompetent 
*  joMielMin,  and  thia  plea  traytnas  that  ayermen^  and  state*  the  law  of  Vranot  upon  thai 
p^iat  The  irkolm  mattar,  tharsfbie^  was  ooram  nan  judios^  and  tha  oouit  is  Wnam  must  baya 
been  misled." 

As  to  the  siztatnth  plea,— "  Tha  second  count,  to  which  this  plea  is  pleaded,  b  ibwded  upoB* 
At  isfcndartf^  allegud  aoceptancts  in  ftyonr  of  tht  deceased  Vanqnelin,  and  allagaa  that  they 
vwodMtohimattliatlmaof  hisdeath.  Tht  |daintiff  may  hatha  legal  NpiWiBtatlyttf  tha 
dssiMad  Vaa«MU&  in  Vrtsioa |  hot  bo  panon  can  sua  ia  Ibt  fmirti  af  thia  ssiiliy  in  right  sd 
*  iWisaassii,  aawspt  his  legai  peisaaat  tepresantatiya  empowarsd  at  afyeialsd  by  tha  prtyar  tdr 
Waal  of  this  country." 

As  to  te  alghleonth  plaur-^Tha  plea  showa,  that,  out  otm^Mj  helMgbff  ta  tlw  dafca4M% 
*e  arid  VaoqwIiB  Ntalntd  mart  thaa  snOtlanl  ta  saAWy  fait  «lai«  IB  psapaoMC^ha  said  indcr 

MiAfBd  UUa  fT  miahii^ik  uDd  thirt  thanfm  ia  haa  1 
0.  B,  V.  8.,  VOL.  XV.— 16 


859  VANQUELIN  r.  BOUARD.    M.  T.  1863. 

the  position  of  an  execator  or  administrator  here?  [Erlb.  0.  J. — 
The  rights  and  liabilities  of  the  testator  or  intestate  do  not  Jevolvc 
personally  and  absolutely  on  his  executor  or  administrator.]  It  is  not 
alleged  that  the  plaintiff  would  be  liable  according  to  the  French  law 
beyond  the  amount  of  the  assets  coming  to  her  hands.  If  this  debt 
when  recovered  would  form  part  of  the  deceased's  assets  or  "  succea- 
fiion,"  the  plaintiff  can  only  sue  for  it  as  his  administratrix  :  King  v. 
Thorn,  1  T.  R.  489 ;  Ord  v.  Fenwick,  8  East  103.  [Williams,  J.— 
It  was  not  necessary  for  the  plaintiff,  under  the  circumstances  stated 
in  this  declaration,  to  have  probate  or  letters  of  administration  to 
entitle  her  to  sue.  The  payment  to  Bolli  was  after  the  death  of  Van- 
quelin :  the  plaintiff  was  not  bound  to  sue  in  a  representative  charac- 
ter.] The  judgment  of  Lord  Ellen  borough  in  Ord  v.  Fenwick  shows 
that  she  was.  [Erls,  C.  J. — It  was  enough,  to  sustain  Lord  Ellenbo- 
rough's  proposition  there,  that  the  plsLintin  might  have  sued  as  execu- 
trix.] The  plaintiff  is  not  suing  here  upon  a  judgment  obtained  by 
her  in  France:  the  proceeding  in  the  Tribunal  Civil  of  the  First 
Instance  of  the  department  of  the  Seine,  was  merely  a  proceeding 
founded  upon  and  intended  to  enforce  the  judgment  of  the  Court  of 
the  Tribunal  of  Commerce.  The  second  count  raises  another  ques- 
ition.  There  is  no  allegation  there  that  the  plaintiff  has  paid  any  money, 
^3801  ®^  *^  ^^  found  a  right  in  herself.  The  *eleventh  plea  deals 
-I  with  the  judgment  and  the  proceeding  to  enforce  it.  If  the 
4irst  count  makes  the  plaintiff  no  more  than  an  executrix  or  adminis- 
tratrix,  the  eleventh  plea  is  a  good  answer  to  that:  it  is  a  traverse 
that  she  fills  that  character.  So  that  either  the  declaration  is  bad,  or 
the  plea  is  good  as  traversing  what  the  plaintiff  alleges  to  the  cod- 
trary.  She  alleges  that  the  character  with  which  she  is  clothed  en- 
titles her  (in  France)  to  sue,  not  *'  in  her  own  right,"  but  "in  her  own 
name,"  which  is  no  more  than  an  executor  might  say.  As  to  the 
twelfth  plea,  it  is  clear  that  there  can  be  no  cause  of  action  here  upon 
a  judgment  of  a  foreign  court  which  is  not  final  in  the  country  where 
It  is  obtained.  This  plea  alleges  that  the  defendant  might  come  in  at 
any  time  and  set  that  judgment  aside.  The  thirteenth  plea  is  a  denial 
of  the  jurisdiction  of  the  court  in  which  the  judgment  was  obtained. 
It  goes  on  to  allege  why:  but  that  is  wholly  immaterial;  for,  the 
foreign  law  is  only  matter  of  evidence.  The  sixteenth  plea  is  a  good 
answer  to  the  second  count  if  the  argument  that  the  plaintiff  was 
bound  to  sue  in  a  representative  character  is  well  founded.  As  to 
the  eighteenth  plea, — if  there  was  a  special  bargain  such  as  is  alleged 
in  this  plea,  no  implied  promise  to  repay  the  money  could  arise.  As 
regards  the  second  count,  the  plea  amounts  in  substance  to  this,  that 
the  bills  were  accepted  for  the  accommodation  of  the  drawer,  and 
that  there  was  no  value  or  consideration  for  the  defendant's  accept- 
ance. 

Smithj  in  reply. — The  first  count  distinctly  avers  that  the  plaintiff 
is  suing,  not  in  a  representative  character,  but  in  her  own  right.  If, 
she  was  entitled  to  sue  in  her  own  right  in  respect  of  this  cause  of  action 
in  Prance,  she  is  entitled  to  do  so  here.  [Erle,  0.  J,— We  think  the 
*8A11  ^^^^  count  tenable  on  the  ground  put  by  *my  Brother  Wil- 
-*  liapiSi  viz.,  that  the  plaintiff  paid  the  money  after  the  death  of 
Yanquelin,  and  so  beoame  entitled  to  sue  in  her  own  name  and  right. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        361 

Address  your  attention  to  the  second  count,  and  to  the  pleas,  and  more 
especially  to  the  eighteenth.  Williams,  J. — In  whatever  language  yott 
put  it^  you  cannot  disguise  the  fact  that  the  plaintiff  was  tlie  personid 
representative  of  her  husband  in  France.  The  second  count  relies  on 
a  cause  of  action  which  accrued  to  the  husband  in  his  lifetime.]  The 
second  count  alleges  that  the  bills  were  drawn  and  accepted  in  France, 
that  the  plaintiff  was  donee  of  the  universality,  and  as  such  eniitled 
by  the  law  of  France  to  sue  in  her  own  name  and  in  her  own  right  in 
respect  of  claims  and  causes  of  action  accruing  to  her  in  that  charac- 
ter: and  this  is  not  traversed :  consequently  that  which  is  essential 
to  give  her  the  right  so  to  sue  in  France  is  admitted.  [Keating,  J. — 
What  is  the  precise  position  of  the  "  donee  of  the  universality"  by 
the  French  law  ?  Hodgson, — If  she  chooses  to  take  the  assets  with- 
out inventory,  she  becomes  liable  to  all  the  debts  and  obligations  of 
the  deceased :  but,  if  she  avails  herself  of  the  benefit  of  inventory, 
her  liability  is  limited  to  the  value  of  the  assets.]  What  the  law  of 
France  may  be,  is  only  matter  of  proof,  if  traversed.  The  eleventh 
plea  is  sufficiently  answered  by  what  has  already  been  said.  Th6 
twelfth  plea  shows  that  the  judgment  is  an  existing  judgment.  [Wil- 
liams, J. — What  judgment?]  The  judgment  obtained  by  Bolli  in 
the  Coart  of  the  Tribunal  de  Commerce.  The  other  is  a  proceeding 
in  a  diflferent  court — an  injunction  to  pay.  As  to  the  thirteenth  plea, 
-^whether  the  defendant  was  a  trader  or  not,  or  whether  the  allega- 
tion that  the  bill«  were  drawn  at  Orleans  were  true  or  not,  were  mat- 
ters properly  triable  in  the  Tribunal  of  Commerce.  These  are  matters 
which  it  is  not  for  this  court  to  enter  into.  *  Where  the  court  r*ggo 
in  which  the  judgment,  whether  foreign  or  colonial,  is  pro-  ^ 
nounced  has  jurisdiction  over  the  subject-matter  and  over  the  person 
of  the  defendant,  add  it  appears  that  he  has  had  an  opportunity  of, 
making  his  defence  there,  the  grounds  of  the  judgment  cannot  be 
impeached  in  an  action  upon  the  judgment  in  our  courts:  The  Bank 
of  Australasia  v.  Nias,  16  Q.  B.  717  (E.  C.  L.  R.  vol.  71);  Castrique 
V.  Imrie,  8  C.  B.-N.  S.  1  (E.  C.  L.  R.  vol.  98);  Imrie  v.  Castrique,  8 
C.  B.  N.  S.  405.  [Williams,  J.— You  say  that  the  effect  of  the  judg- 
meat  by  default  in  the  French  court  is,  to  admit  that  the  plaintiff  was 
in  a  position  to  prove  everything  that  was  necessary  to  give  him  sue* 
cess  in  the  action  ?]  Yes.  As  to  the  eighteenth  plea,  if  what  is  ther^ 
alleged  was  partof  the  original  bargain  or  arrangement,  it  might  have 
been  set  up  as  a  defence  in  the  French  court.  The  statement  in  that 
plea  is  at  all  events  no  answer  to  the  allegation  in  the  declaration  that 
the  plaintiff  was  obliged  to  pay  the  amount  of  the  judgment  to  Bolli| 
and  thus  became  by  the  law  of  France  entitled  to  enforce  it  against 
the  defendant.  The  facts,  if  true,  might  possibly  be  an  answer  to' 
the  seoond  count,  as  showing  in  effect-that  the  bills  were  accommoda- 
tion bills;  and,  if  it  bad  been  confined  to  that,  it  probably  would  not 
have  been  demurred  to,  [Williams,  J. — Our  judgment  may  be 
divided  on  the  demurrer  to  that  plea.] 

Hodgson,  with  the  permission  of  the  court,  referred  to  the  following 
additional  authorities  :—Havelock  v.  Bockwood,  8  T.  R.  268 ;  Bowles 
V-  Orr,  1  Y.  &  0.  464;  Plummer  t;.  Woodbnrne,  4  B.  &  0.  626  (E.  0. 
L.  B.  vol  lOX  7  D.  &  B.  25 ;  Smith  v.  NicoUs,  7  Soott  147,  6  If .  0; 


fg&  VANQUKLIN  ».  BOUARD.    M.  T.  1863. 

fi9,  r  Powl.  p.  0.  282,  aud  Patrick  v.  Sbedden,  2  Ellis  &  B.  14  (B. 
C.  L.  B.  vol.  76).(a) 

•aesi  *^^^^i  0,  J.-^Upon  the  argament  of  thege  deqiarrei?, 
J  eevaral  questions  have  been  raised  with  reference  to  the  French 
b^.  The  foandation  of  the  litigation  was  certain  bills  of  exchange 
q{  which  the  deceased,  Jacques  Alexander  FranQois  Yanqnelin,  was 
4rawer,  the  defendant  the  acceptor,  and  one  Bolli  the  endorsee.  Bolli 
brought  an  action  against  both  drawer  and  acceptor  in  the  Court  of 
%hQ  Tribunal  de  Oommerce  of  the  department  of  the  Seine,  and  ob- 
tained judgment  against  them.  Yanquelin,  the  drawer,  died :  bis 
widow»  the  now  plaintiff,  in  aooordanee  with  the  laws  of  Franee, 
became  the  donee  of  the  universality  of  the  real  and  personal  estates 
belonging  to  the  succeasion  of  the  deceased  at  his  death;  and  she 
I^Ueges  that  thereby  and  according  to  the  laws  of  France  all  rights^ 
claims,  and  causes  of  action,  and  all  liabilities  and  obligations  of  tbe 
deceased  vested  in  her  pieraonally  and  absolutely,  and  she  became^ 
According  to  the  said  laws,  liable  personally  upon  the  said  judgment) 
l^nd  also  entitled  personally  and  in  her  own  name  to  sue  for  and 
^force  all  the  rights  and  claims  of  the  deceased,  and  that  she  was 
According  to  the  said  laws  substituted  for  and  placed  in  the  same  posi- 
lion  with  respect  to  the  defendant,  as  regarded  the  said  bills  of  ex- 
change and  the  judgment  thereon,  to  all  intents  and  purposes,  as  the 
deceased  had  been  in  his  lifetime.  The  count  then  goes  on  to  allege 
that  afterwards,  and  whilst  the  judgment  was  in  full  force  and  un- 
natisfied,  and  the  plaintiff  and  defendant  were  both  liable  thereupon, 
the  plainti^  in  accordance  with  the  laws  of  France,  was  obliged  to 
pay  and  did  pay  the  full  amount  of  the  judgment  and  all  interest  duo 
thereon,  and  tMt  thereupon  Bolli  delivered  to  her  the  said  bills  of 
exchange  and  the  record  of  the  said  judgment,  and  the  plaintiff  then 
became  and  still  was  according  to  the  laws  of  France  entitled  to  the 
*9641  ^^^^^^  ^^  ^'^  ^^^  rights  of  Bolli  ^upon  the  said  judgment 
^J  against  the  defendant,  and  entitled  to  enforce  the  same  against 
the  defendant,  and  to  be  substituted  for  Bolli  in  all  his  rights  against 
the  defendant  in  respect  of  the  said  judgment ;  and  that  the  defendant 
became  indebted  and  liable  to  pay  her  the  amount  so  paid  by  her 
vpon  the  said  judgment,  with  6  per  cent,  interest  thereon  until  jMiy- 
pient.  The  OQunt  then  goes  on  to  allege  that  the  plaintifl^  having 
ihese  rights,  in  ofder  tp  ktiep  alive  the  liability  of  the  d^endant^  ana 
to  prevent  the  QAme  from  Wing  barred  by  lapse  cf  ttnie>  aod  in  order 
to  give  efSdOk  to  and  enfoie^  her  claim  against  the  defendant,  took; 
prooeedi^gs  in  the  Tribtmal  Oivil  of  the  First  Instanoa  of  the  depart^ 
ipeut  of  Vk^  Sein^  and  that  thereupon,  aocor^ng  to  the  pradiee  and 
procedure  qf  the  said  Qai«rt»  c«k  the  2d  of  April  1862,  by  a4|ndiesticm 
of  the  said  CQurt  an  i^ttiietioA  was  made  to  the  defendant  to  pay  oer^ 
taip  sums  of  money  for  principal  interest,  and  costs,  and  it  was 
l^cy^<^^  ^^  notified  to  tk^  d^adant  that  he  would  he  ooastrained 
to  do  so  by  all  lawful  means  and  by  arrest  of  Uft  hocfy.  Tiiat  is  Urn 
iub4«WHl  9X  th9  fiiet  eonitt  The  substance  of  the  aeeoad  eoont  is, 
itvit  ^Ttaipi  bi)^  Qf  eija^hwga  were  drawn  upon  the  defendant  by  th* 
doc^M^  and  tcQQp|e4  kj  him,  ^nd  diaheooured ;  that  the  deeeeaed 
4^4  a«4.  tdf  pl«iirtif(  WM  tKMQidiAg  ta  the  laws  ef  Frai»oe  the  donea 

(a)  And  m§  SimpMS  v.  Fogo,  M  Law  J.,  Ch.  067,  ob  appMd,  82  Law  J.,  Ch.  S49. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        364. 

of  the  universality  of  the  personal  atid  real  estates  belonging  to  the 
succession  of  the  deceased,  and  thereupon  became  entitled  to  all  debtsi 
claims,  and  causes  of  action  which  the  deceased  was  entitled  to>  and 
the  same  became  and  were  according  to  the  said  laws  vested  in  th^ 
plaintiff  personally  and  absolutely,  in  the  same  manner  to  all  ititenti 
and  purposes  as  they  were  vested  in  the  deceased^  and  the  plaintiff 
was  entitled  to  demand  and  sue  for  the  same  in  her  own  name  and  in 
her  own  rights  and  the  claims  and  rights  of  the  deceased  upon  riog^ 
*the  said  bills  became  vested  in  the  plaintiff,  and  she  became  ^ 
entitled  to  sue  the  defendant  thereupon  in  her  own  name  and  in  her 
own  right;  and  she  demands  payment  of  the  amount  thereof  and 
interest.  The  ground  of  the  demurrei*  to  these  two  counts,  is,  tha^ 
the  plaintiff  is  in  effect  suing  in  a  representative  character,  which  she 
cannot  do  without  having  obtained  letters  of  administration  in  this 
country.  The  allegation  in  both  counts  is^  that,  being  donee  of  the 
universality  of  the  personal  and  real  estates  belonging  to  the  succes* 
sion  of  her  deceased  husband,  the  plaintiff  became  according  to  thef 
laws  of  France  entitled  to  all  the  property  and  rights  of  the  deceased 
absolutely  in  her  own  right,  and  not  in  any  representative  capacity. 
I  am  of  opinion  that  that  averment,  if  it  were  necessary  to  stand  upon 
it^  must  be  taken  to  be  true,  and  so  it  appears  upon  the  record  that 
the  law  of  France,  in  which  country  all  the  parties  were  domiciled^ 
would  give  her  a  locus  standi  to  sue  there  in  her  personal  capacity^ 
But  it  is  not  necessary  to  rest  upon  that.  The  first  count  shows,  that» 
after  the  death  of  her  husband,  the  plaintiff  paid  the  amount  due  ta 
BoUi  in  respect  of  the  bills  and  the  judgment;  and  that^  it  seems^ 
would  give  her  the  right  to  sue  in  the  courts  of  France  in  her  owd 
name  and  in  her  own  right,  as  indeed  it  Would  in  this  country  also* 
It  has  on  many  occasions  been  held  that  an  eicecutor  or  administrator 
has  his  election  to  sue  either  in  his  own  right  or  in  his  representative 
character  in  respect  of  transactions  arising  since  the  death  of  thep 
testator  or  intestate,  although  what  is  recovered  would  be  assets  la 
his  hands.  Here,  the  allied  cause  of  action  is  founded  mainly  upod 
what  was  done  by  the  plaintiff  after  the  death  of  her  husband.  Thero 
is  a  further  answer  to  the  demurrer  to  the  first  count,  viz.  that  the 
rights  of  the  plaintiff  were  confirmed  by  the  second  adjudication  or 
injunction  ^obtained  by  her  in  the  Tribunal  Civil  of  the  First  r*3g^ 
Ixiistance  of  the  department  of  the  Seine,  which  entitled  her  to  '- 
execution  against  the  defendant  in  that  country.  It  seems  to  mef 
therefore,  that  there  is  abundant  on  the  first  count  to  show  that  the 

XIaintiff  has  a  good  cause  of  action  against  the  defendant  in  her  in- 
ividual  capacity,  without  having  recourse  to  the  special  matter  before 
adverted  to.  As  to  the  demurrer  to  the  second  count,  it  is  clear  that 
the  plaintiff  took  the  bills  on  the  death  of  her  husband,  and,  if  nothing 
more  appeared,  she  could  only  enforce  them  here  by  clothing  herself 
with  the  eharacter  of  his  representative.  But  the  law  of  domieil 
attaches  to  these  parties ;  and  there  is  a  distinct  averment  that  the 
plaintiff  was,  according  to  the  laws  of  France,  "  the  donee  of  the 
vniversality  of  the  personal  and  real  estates  belonging  to  the  aooces' 
sion  of  the  deceased,  and  thereupon  became  entitled  to  all  debt% 
ilaims,  and  causes  of  action  which  the  deceased  was  entitled  to,  and 
ihe  same  became  and  were  according  to  the  said  laws  vested  lo  the 


866  VANQUELIN  v,  BOUARD.    M  T.  1863. 

plaintiff  personally  and  abgolutely  iu  the  sarae  manner  to  all  intents 
and  purposes  as  they  were  vested  in  the  deceased,  and  the  plaintiff 
was  and  is  entitled  to  demand  and  sue  for  the  same  in  her  otan  name 
and  in  her  ownnght,  and  the  claims  and  rights  of  the  deceased  apoa 
the  said  bills  became  vested  in  the  plaintiff,  and  the  plaintiff  became 
entitled  to  sue  the  defendant  thereupon  in  her  oum  name  and  in  her 
awn  right^^    I  think  it  sufficiently  appears  upon  this  record  that  the 
plaintiff  was  entitled  to  sue  upon  these  bills  in   her  own  right;  the 
fact  of  her  being  the  donee  of  the  universality  of  the  personal  and 
real   estates  belonging  to   the  succession  of  her  deceased  husband 
giving  her  by  the  law  of  France  rights  different  from  those  which  an 
executor  or  an  administrator  has  in  this  country.     I  am  therefore  of 
*^ft71   *^P^"^^^  ^^^^  ^^^  plaintiff  is  entitled  to  our  judgment  upon  the 
-I   demurrers  to  both  counts  of  the  declaration. 
There  are  then  several  pleas  which  have  been  demurred  to.    The 
first  of  these,  the  first  plea  upon  the  record,  which  alleges  that  the 
said  bills  of  exchange  were  not  drawn  at  Orleans,  is  clearly  bad.    The 
eleventh  plea,  to  the  first  count,  states  that  the  sums  alleged  to  be  dae 
by  virtue  of  the  said  judgment  and  injunction,  and  under  the  circum- 
stances in  the  count  mentioned,  would,  according  to  the  laws  of  France, 
form  part  of  the  succession  of  the  deceased,  and  be  assets  in  the  hands 
of  the  plaintiff  as  such  donee  of  the  universality  of  the  real  and  per- 
sonal estates  belonging  to  the  succession  of  the  deceased,  to  be  admin- 
istered;  such  donee  being,  according  to  the  said  laws,  the  representa- 
tive of  the  deceased  in  France,  and  entitled  to  the  said  sums  of  monej 
in  her  representative  character,  and  not  otherwise.   That  which  I  have 
already  said  as  to  the  plaintiff's  right  to  maintain  the  action  in  her 
own  name,  when  dealing  with  the  first  count  of  the  declaration,  and 
as  to  her  rights  in  respect  of  the  second  adjudication,  in  the  Tribaoal 
Civil  of  the  First  Instance  of  the  department  of  the  Seine,  seems  to 
me  equally  to  afford  an  answer  to  this  plea,  and  to  entitle  the  plain- 
tiff to  judgment  upon  the  demurrer  thereto.   The  twelfth  plea,  to  the 
first  count,  alleges  that  the  judgment  in  the  first  count  mentioned  was 
a  judgment  by  default  for  want  of  an  appearance  by  the  defendant  in 
the  Court  of  the  Tribunal  of  Commerce,  and  by  the  law  of  France 
would  become  void  as  of  course  on  an  appearance  being  entered.     I 
apprehend  that  every  judgment  of  a  foreign  court  of  competent  jaria- 
diction  is  valid,  and  may  be  the  foundation  of  an  action  in  our  courts, 
though  subject  to  the  contingency,  that,  by  adopting  a  certain  course, 
^3681  ^^^  P^'^y  against  whom  the  judgment  is  obtained  might  cause 
^  it  *to  be  vacated  or  set  aside.     But,  until  that  course  has  been 
pursued,  the  judgment  remains  in  full  force  and  capable  of  being  sued 
^  upon.    The  plaintiff,  therefore,  must  have  judgment  on  the  demurrer 
to  this  plea.    The  answer  set  up  by  the  thirteenth  plea  (also  to  the 
first  count),  is,  that  the  Court  of  the  Tribunal  de  Commerce  was  not 
a  court  of  competent  jurisdiction  according  to  the  French  law,  because 
the  defendant  was  not  a  trader  when  he  accepted  the  bills,  and  because 
the  bills  falsely  purported  to  be  drawn  at  Orleans,  whereas  they  were 
not  drawn  there,  nor  was  the  drawer  domiciled  there  at  the  time  the 
bills  were  drawn.   But  I  am  of  opinion  that  the  judgment  of  a  foreign 
court  is  valid  if  the  court  has  jurisdiction  over  the  person  and  over 
the  subject-matter  of  the  action :  and  it  seem^  to  me  upon  this  plea 


COMMON  BENCH  REPORTS.    (16  J.  SCOTT.    N.  S.)        36» 

that  the  Court  of  the  Tribanal  de  Corameroe  had  jurisdiction  over  the^ 
subject-matter  of  the  suit  in  which  the  judgment  was  obtained,  viz., 
the  h'abilitj  of  the  acceptor  of  a  bill  of  exchange,  and  that,  if  it  were 
matter  of  defence  that  the  defendant  was  not  a  trader  or  not  resident 
within  the  jurisdiction  of  the  court,  it  was  a  matter  which  ought  to- 
have  been  set  up  by  way  of  defence  in  that  court,  and  cannot  avail, 
the  defendant  in  an  action  upon  the  judgment  here.  The  definition: 
of  a  *'  trader"  according  to  the  French  law  may  be  very  diflferent  from 
that  of  a  trader  according  to  our  law.  So,  as  to  the  question  whether 
or  not  Vanquelin  resided  at  Orleans  when  the  bills  were  drawn,— 
that  also  might  have  been  tried  and  disposed  of  in  the  court  there. 
The  force  and  validity  of  a  foreign  judgment,  and  the  grounds  upon* 
which  it  may  be  impeached  in  the  courts  of  this  country,  are  well 
laid  down  in  the  case  of  The  Bank  of  Australasia  v.  Nias,  16  Q.  B. 
717  (E.  C.  L.  B.  vol.  71),  where  Lord  Campbell,  in  delivering  the 
judgment  of  the  court  (p.  737)  says:  "If  the  judgment  was  given  by 
a  court  'in  foreign  country,  or  in  a  court  of  one  of  our  colo-  r^ogft 
nies  governed  by  a  foreign  law,  how  is  tl^e  cause  to  be  re-tried  ^ 
atnini  prius?  In  the  absence  of  direct  authority,  it  gives  us  great 
satisfaction  to  think  that  Lord  Denman  seems  to  have  taken  the  same 
view  of  the  subject  in  Ferguson  v.  Mahon,  11  Ad.  &  E.  179  (E.  C.  L. 
R.  vo^  i^}^  3  P.  &  D.  143,  and  still  more  distinctly  in  Henaerson  v. 
HeodersoD,  6  Q.  B.  288  (E.  C.  L.  fi.  vol.  51)  (a)  where  he  intimates  a 
clear  opinion  that  'a  plea  to  an  action  on  the  judgment  of  a  colonial 
ooart  ought  to  steer  clear  of  an  inquiry  into  the  merits  of  the  case ; 
for,  whateyer  constituted  a  defence  in  that  court  ought  to  have  been 
pleaded  there.'  "  The  sixteenth  plea,  to  the  second  count,  is,  that 
the  plaintiff  is  not  executor  or  administrator  of  Vanquelin,  deceased. 
For  the  reasons  before  given  in  dealing  with  the  second  count,  I  think, 
that,  as  the  plaintiff  is  the  donee  of  the  universality  of  the  personal 
and  real  estates  belonging  to  the  succession  of  the  deceased,  and  be- 
came thereby  entitled  to  all  debts,  &c.,  to  which  he  was  entitled, 
which  by  the  French  law  became  vested  in  her  personally  and  abso- 
lutely in  the  same  manner  as  they  were  vested  in  him,  and  she  was 
entitled  in  France  to  demand  and  sue  for  the  same  in  her  own  name 
and  right,  it  is  quite  immaterial  whether  or  not  she  was  executrix  in 
this  country.  The  eighteenth  plea,  which  is  pleaded  to  both  counts, 
states  that  the  deceased  and  the  defendant,  in  France,  agreed  to  pur- 
chase  for  their  joint  benefit  a  debt  due  to  one  Madame  de  Quereoque, 
and  charged  upon  certain  property  in  France ;  that  it  was  agreed  be- 
tween them  that  the  deceasea  should  advance  the  purchase-money, 
and  that  the  defendant  should  accept  the  bills  in  the  declaration  men- 
tioned as  a  security  to  the  deceased  in  case  the  debt  should  not  realize 
the  amount  of  the  purchase-money ;  that,  except  as  aforesaid,  there 
was  *never  any  value  or  consideration  for  the  acceptance  of  r*onQ 
the  bills ;  that  the  deceased  recovered  a  large  sum  in  respect  '- 
of  the  said  debt,  and  retained  the  same;  and  that  the  share  thereof 
belonging  to  the  defendant  and  so  retained  by  the  deceased,  was  more 
than  sufficient  to  satisfy  the  claim  of  the  deceased  in  respect  of  the 
said  judgment  and  bills.  The  effect  of  this  plea  is,  that  this  is  an 
action  by  the  drawer  of  an  accommodation  bill  against  the  acceptor, 

(a)  And  lee  Henderton  •.  HtDderson,  11  Q.  B.  1015  (B.  CUB.  Tol.  63).  * 


870  VANQUELIN  ».  BOUARD.    M.  T.  1863. 

and  thiat  there  was  no  valne  or  consideration  for  the  acceptance.  It 
seems  to  me  that  the  answer  to  that  plea,  so  far  as  it  is  pleaded  to  the 
first  count,  is,  that  the  satisfaction  is  alleged  to  have  accrued  in  the 
lifetime  of  the  plaintiff's  husband,  and  that  the  money  in  respect  of 
which  she  is  suing  was  paid  by  her  since  his  decease.  As  to  the  first 
count,  therefore,  the  plea  fails :  but,  as  to  the  second  county  it  appears 
to  me  that  the  eighteenth  plea  affords  no  answer. 

The  result  is,  that,  in  my  opinion,  the  plaintiff  is  entitled  to  judg- 
ment upon  all  the  demurrers,  except  as  to  the  eighteenth  plea;  and 
that,  as  to  so  much  of  that  plea  as  is  pleaded  to  the  first  count,  there 
should  be  judgment  for  the  plaintiff)  and,  as  to  so  much  as  is  pleaded 
to  the  second  count,  judgment  for  the  defendant. 

WtLLiAMS,  J. — I  am  of  the  same  opinion.  As  to  the  first  count,  I 
think  our  judgment  on  the  demurrer  thereto  ought  to  be  for  the 
plaintiff.  I  do  not  consider,  that,  in  so  holding,  the  court  will  in  aay 
way  depart  from  or  diminish  the  effect  of  the  rule  which  has  beeua 
established  by  a  long  series  of  cases  as  well  at  law  as  in  equity  upon 
this  subject,  viz.  that,  in  order  to  entitle  a  party  to  sue  in  any  court 
in  this  country,  whether  of  law  or  of  equity, 4n  reject  of  the  property 
*871 1  ^^  ^^^  personal  rights  of  a  deceased  person,  he  must  *show  that 
-'  he  has  obtained  probate  or  letters  of  administration  from  the 
proper  court  of  this  country.  That  rule  was  recognised  by  Lord 
Cottenham  in  Tyler  v.  Bell,  2  Mylne  &  Gr.  89,  and  Price  v.  Dewhurst, 
4  Mylne  k  Cr.  76;  and  also  by  the  Exchequer  Chamber  in  Whyte  v. 
Bose,  S  Q.  B.  498.  507  (E.  C.  L.  B.  vol.  48),  2  Gale  &  D.  812,  where 
Tindal,  C.  J.,  in  delivering  the  judgment  of  the  court,  distipctly  says^ 
^-^'  It  is  well  established,  that,  in  order  to  sue  in  any  court  of  this 
country,  whether  of  law  or  equity,  in  respect  of  the  personal  rights  or 

troperty  of  an  intestate,  the  plaintiff  must  appear  to  have  obtained 
otters  G^  administration  in  the  proper  spiritual  oourt  of  thb  country : 
•ee  the  judgment  of  Sir  John  NichoU  in  Spratt  v.  Harris,  4  Hagg-. 
Eccl.  R.  405 ;  and  see  also  the  judgment  of  the  Lord  Chancellor  in 
Price  V.  Dewhurst"  That  rule  so  established  is  also  recognised  in 
the  United  States  of  America,  as  appears  from  a  note  by  Mr.  Troubat 
to  his  edition  of  Williams  on  Executors.  But  that  learned  author 
goes  on  to  say  (and  I  agree  with  the  qualification)  that  the  rule  does 
not  apply  unless  the  party  is  suing  in  right  of  the  deceased.  Apply* 
ing  those  principles  to  the  first  count,  it  appears  to  roe  to  be  plain  that 
the  right  which  the  plaintiff  is  there  seeking  to  enforce  is  not  a  right 
which  the  deceased  ever  had.  It  was  not  a  peraonal  right  which 
formed  part  of  his  estate  at  the  time  of  his  death :  but  it  was  a  right 
which  was  acquired  by  the  plaintiff  herself  sinoe  her  husband's  death. 
It  was  a  right  which  was  compounded  of  a  payment  made  by  her  and 
n  judgment  obtained  by  her  in  a  court  of  competent  jurisdiction  in 
France  since  his  death.  The  right,  therefore,  which  she  is  seeking  to 
enforce  by  that  eount  ia  not  one  which  was  ever  vested  in  the  deceasod 
#r  which  could  form  part  of  his  estate^  but  a  right  which  the  plaintiff 
lierself  had  acquired,  and  which  she  was  entitled  to  assert  in  her  own 


»872] 


name  and  in  her  own  *individ  ual  capacity.  These  ooosideratioiis 
do  not  apply  to  the  second  count.  As  to  that  I  must  confess  I 
feel  some  difficulty :  but,  as  my  Lord  and  my  Brother  Keating  have 
eomc  to  the  condusion  that  this  count  is  capable  of  being  construed 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)       372 

in  a  waj  to  wbich  I  will  presently  advert,  I  do  not  feel  justified  in 
diflbring  from  them,  though  I  cannot  help  entertaining  some  doubt  as 
to  whether  that  is  the  proper  construction  to  put  upon  it.  There  is 
no  doubt  that  by  the  law  erf*  this  country  property  which  a  man  takes 
as  executor  may  be  so  dealt  with  by  him  as  to  become  his  own. 
This  was  established  so  long  ago  as  the  case  of  Merchant  v.  Driver,  1 
Saund.  307,  where  it  is  said,  that,  "  if  an  administrator,  &c.,  pay  with 
his  own  money  the  debts  of  the  intestate,  &g.,  in  such  order  as  the  law 
appoints,  to  the  value  of  all  the  goods,  he  may  lawfully  dispose  of  the 
goods  as  he  pleases,  and  it  will  not  be  a  devastavit"  He  becomes  in 
&ct  the  purcnaser  of  the  goods.  Now,  here,  the  second  count  contains 
an  averment,  that,  on  the  death  of  her  husband,  the  plaintiff  was 
according  to  the  law  of  France  the  donee  of  the  universality  of  the 
personal  and  real  estates  belonging  to  the  succession  of  the  deceased, 
and  thereupon  became  entitled  to  all  debts,  claims,  and  causes  of  action 
which  the  deceased  was  entitled  to,  and  the  same  became  and  were 
according  to  the  said  laws  vested  in  the  plaintiff  personally  and 
absolately  in  the  same  manner  to  all  intents  and  purposes  as  they 
were  vested  in  the  deceased,  and  that  the  plaintiff  was  and  is  entitled 
to  demand  and  sue  for  the  same  in  her  own  name  and  in  her  own 
right.  Now,  the  construction  which  the  rest  of  the  court  put  upon 
that,  is,  that  it  appears  that  the  plaintiff  has,  by  some  course  of  con- 
dact  apd  proceeding  which  is  not  (and  need  not  be)  particularized  in 
the  declaration,  herself  become  according  to  the  law  of  France  the 
owner  of  these  *rights,  and  may  enforce  them,  by  reason  of  her  r^ono 
undergoing  personal  and  individual  liability  in  respect  of  them.  ^ 
I  must  confess  I  was  strongly  impressed  with  the  notion  that  this  was 
only  a  disguised  averment  framed  with  a  view  to  evade  the  rule  which 
requires  administration  in  order  to  entitle  a  party  to  sue  in  respect  of 
the  personal  rights  or  property  of  a  deceased  person,  but  in  substance 
amounting  to  no  more  than  a  statement  that  the  plaintiff  was  the  legal 
personal  representative  of  her  deceased  husband.  But  I  am  disposed 
to  assent  to  the  view  taken  by  my  Lord  and  my  Brother  Keating, 
viz.  that  it  does  amount  to  an  averment,  that,  according  to  the  law 
of  France,  the  plaintiff,  by  reason  of  the  liability  which  her  relation 
to  the  deceased's  property  entailed  upon  her,  acquired  a  personal  and 
individual  right  to  enforce  this  claim,  and  ne^  not  clothe  herself 
with  the  character  of  his  personal  representative.  With  respect  to 
the  observations  which  my  Lord  has  made  upon  the  several  pleas 
demurred  to,  it  is  enough  for  me  to  say  that  I  fully  concur  in  them. 
Keating,  J-(a) — I  am  of  the  same  opinion.  I  entirely  agree  witb 
all  the  observations  which  have  been  made  by  the  Lord  Chief  Justice 
upon  the  first  count  of  the  declaration.  As  to  the  second  count,  it 
must  not  be  supposed  that  there  is  any  difference  amongst  the  mem- 
bers of  the  court  as  to  the  rule  which  governs  the  mode  of  enforcing 
personal  rights  or  claims  to  property  of  decea^  persons.  That  rule 
is  well  established,  and  nothing  in  this  judgment  is  intended  to  shake 
it  But  I  agree  with  my  Lord  that  the  second  count  does  sufficientlj 
show  upon  the  face  of  "it^  that,  according  to  the  law  of  Prance,  the 
phtintiff  was  entitled  (in  France)  to  this  succession,  and  to  ane  IB 


373  VANQUELIN  v.  BOUARD.    M.  T.  1863. 

♦^741  ^^^P®^^  of  i*  ^"  ^®^  *own  name  and  in  her  own  right.  It  seems 
-I  to  me  that  that  is>a11eged  in  the  count  with  sufficient  distinct- 
ness, and  that  it  is  admitted  by  the  demurrer.  I  also  entirely  agree 
with  what  has  been  said  with  regard  to  the  pleas.  At  first  I  was 
disposed  to  think  that  the  thirteenth  plea  presented  some  difficulty : 
but  I  think  the  distinction  pointed  out  by  Mr.  Smith  is  well  founded. 
The  judgment  of  a  foreign  court  may  undoubtedly  be  impeached  in 
our  courts  for  want  of  jurisdiction,  but  not  by  the  denial  of  any  facta 
which  it  was  competent  to  the  foreign  court  to  try  and  which  that 
court  may  have  decided  on  the  merits.  Now,  the  facts  alleged  iu  the 
thirteenth  plea  clearly  would  have  been  properly  triable  in  the 
French  court.  We  must  assume  that  they  were  tried  there;  and  we 
cannot  re-try  them  here  according  to  the  laws  and  customs  of  another 
country.  I  think  also  that  the  plea  is  very  loosely  framed,  and  that 
it  does  not  contain  any  distinct  allegation  that  the  facts  therein  stated 
would  have  deprived  the  French  court  of  jurisdiction  in  the  matter. 
It  is  unnecessary,  however,  to  go  into  that.  The  result  will  be  as 
my  Lord  has  already  stated.  Judgment  accordingly. 

Hodgsouy  on  behalf  of  the  defendant,  asked  leave  to  add  a  plea  tra 
versing  the  law  of  France  as  to  the  matters  alleged  in  the  second 
count. 

Erm,  C.  J. — We  recommend  your  opponent  to  assent  to  that. 
You  will  no  doubt  arrange  it  with  Mr.  Williams. 


»o7xr  *Be  ALDINGTON  and  HANCOX    and  CHESSHIRE 
^^^J  Nov.  22. 

Upon  A  sobmiuion  to  Arbitration  between  two  individaals  (not  being  pArtnera  in  trAde)  sad 
A  third  part7»  where  the  agreement  of  reference  is  signed  by  one  of  them  thus, — "  A.  for  self  and 
B./' — on  making  the  sabmiasion  a  rale  of  oonrt^  it  most  be  shown  \ij  Affidavit  that  A.  bad  tli« 
Anthority  of  B.  to  sign  for  him. 

Nbebuam  moved  to  make  a  submission  to  arbitration  a  rule  of 
court  pursuant  to  the  17th  section  of  the  Common  Law  Procedure 
Act,  1854,  17  k  18  Vict.  c.  125.  The  officer  had  declined  to  draw- 
up  the  rule  without  the  direction  of  the  court,  on  the  ground  that  the 
agreement  of  reference  did  not  appear  to  have  been  signed  by  Hancox 
or  with  his  authority, — the  executing  parties  being  Chesshire  and 
"Thomas  Aldington  for  self  and  John  Hancox."  Aldington  and 
Hancox  were  not  partners  in  trade,  but  were  interested  in  the  subject- 
matter  of  the  reference  as  trustees.  Aldington  and  Chesshire  appeared 
before  the  arbitrator,  but  it  did  not  appear  that  Hancox  had.  The 
award  had  been  made  against  Chesshire.  The  learned  counsel  sub- 
mitted that  there  was  no  distinction  between  this  and  any  other 
description  of  agency;  and  that  Hancox  might  ratify  the  act  of 
Aldington  at  any  time,  and,  the  award  being  in  his  favour,  there  could 
be  no  doubt  of  his  doing  so.  [Byles,  J.— Under  the  9  &  10  W.  8,  c, 
15,  s.  1,  an  affidavit  of  the  due  execution  of  the  agreement  of  refer- 
ence was  required.  The  words  of  the  17th  section  of  the  Common 
Law  Procedure  Act,  1854,  are  more  comprehensive.] 

E&LK,  C.  J.— Get  an  affidavit  of  Aldington  or  of  Hancox  stating 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        376 

that  Aldington  was  authorized  by  Hanoox  to  sign  the  agreement  of 
reference  for  him ;  and  then  it  may  pass. 

An  affidavit  of  Hancox  was  afterwards  produced  to  the  proper 
officer,  stating,  "  that  the  action  out  of  which  the  agreement  of  refer- 
ence arose  had  his  sanction  *and  approval,  and  that  Thomas  rmQ^ra 
Aldington  in  signing  the  agreement  for  himself  and  the  depo-  L  ^' *' 
nent  acted  therein  for  the  benefit  of  their  joint  interest,  and  as  the 
deponent's  agent,  and  that  the  agreement  had  his  sanction  and  full 
concurrence/'  and  the  submission  was  accordingly  made  a  rule  of 
court. 


BAIBD  and  Others  v.  WILLIAMSON  and  Others.    Nov.  13. 

Tbe  owner  of  a  mine  at  a  higher  level  than  an  adjoining  mine  haa  a  right  to  work  the  whole 
of  hiB  mine  in  the  nsaal  and  proper  manner  for  the  purpoie  of  getting  oat  the  minerals  in  any 
pert  of  hia  mine ;  and  he  ii  not  liahle  for  any  water  whieh  flows  by  gravitation  into  sneh 
nQoining  mine  from  works  so  oondaeted.  Bat  he  has  no  right  by  pumping  or  otherwise  to  bo 
•a  active  agent  in  sending  water  from  his  mine  into  the  adjoining  mine. 

This  was  an  action  by  the  owners  of  a  mine  against  those  of  an 
adjoining  mine  for  so  working  as  to  flood  the  mine  of  the  plaintiffs. 

The  first  count  of  the  declaration  stated,  that,  before  and  at  the 
time  of  the  committing  of  the  grievances  by  the  defendants  as  there* 
inafter  in  that  count  mentioned,  the  plaintiffs  were  possessed  of  a 
certain  ironstone  mine  lying  and  being  in  a  certain  vein  or  seam  of 
ironstone  called  the  red  shagg  ironstone  seam,  [which  was  a  stratum 
of  such  a  nature  as  to  allow  water  to  percolate  and  pass  through  it, 
as  the  defendants  then  well  knew]  ;(a)and  the  defendants  before  and 
at  the  time  aforesaid  were  also  possessed  of  certain  ironstone  mines 
lying  and  being  in  the  same  vein  or  seam  near  and  adjoining  to  the 
said  mine  of  the  plaintiffs,  but  being  on  a  higher  level  than  the  said 
mine  of  the  plaintiffs,  so  that  the  water  introduced  *into  the  ri^^onn 
said  vein  or  seam  in  the  defendants'  said  mines  would  run  ^ 
down  from  the  same  and  pass  into  the  plaintiffs'  said  mine  from  the 
said  mines  of  the  defendants,  the  stratum  or  floor  on  which  the  said 
vein,  seam,  and  mines  lay  being  impervious  to  water,  and  by  means 
thereof,  and  of  the  dip  or  inclination^  thereof,  preventing  such  water 
from  escaping  deeper  into  the  earth  of  otherwise  than  into  the  plain* 
tiffs'  said  mine,  as  the  defendants  then  [also]  well  knew :  Yet  that  the 
defendants,  intending  to  escape  the  expense  of  themselves  raising  to 
the  surface  of  the  earth  the  water  next  thereinafter  mentioned,  and 
to  throw  that  expense  upon  the  plaintiffs,  by  means  of  certain  pump- 
ingengines  and  of  certain  cruts  or  openings  made  by  them  between 
the  said  stratum  of  ironstone  and  divers  lower  strata  in  the  earth  in 
which  large  quantities  of  water  arose,  and  in  divers  whereof  the 
defendants  were  then  working  or  preparing  to  work  the  mines,  wrong- 
fully introduced  and  threw  into  their  said  first-mentioned  mines  great 
quantities  of  water  arising  in  and  coming  from  the  said  lower  strata, 
and  such  water  ran  down  from  such  mines  of  the  defendants  to  the 

(a)  The  words  within  hraokets  were  after  the  demurrers  were  disposed  of  strack  ont,  and 
thoso  in  the  foot-notes  inserted  in  the  Tarions  parts  of  tbe  pleadings  hj  arrangement  between  tho 
partias :  and  tlie  leoond  plea  and  tbe  demurrer  thereto  were  stmok  out  of  the  record. 


377  BAIRD  v,  WILLIAMSON.    M.  T.  1863. 

1)oandary  of  the  [plaintiflb'  portion  of  the  said  stratum  of  iroDStone],(a) 
and  passed  into  and  through  the  same  and  into  the  said  mine  of  the 
plaintiffs, — by  means  whereof  the  plaintiffs  were  hindered  and  pre- 
vented from  working  their  said  mine  so  conveniently  and  profitably 
as  they  otherwise  might  and  would  have  done,  and  were  put  to  great 
expense  in  pumping  and  raising  the  said  water  from  their  said  mine 
to  the  surface  of  the  earth. 

The  second  count  stated,  that,  before  and  at  the  time  of  the  com- 
mitting  of  the  ffrievances  by  the  defendants  as  thereinafter  in  that 
count  mentioned,  the  plaintiffii  were  possessed  of  a  certain  other 
ironstone  mine  lying  and  being  in  a  certain  vein  or  seam  of 
*3781  *^^^^s^°^  called  the  red  mine  ironstone  seam  [which  was 
-la  stratum  of  such  a  nature  as  to  allow  water  to  percolate  and 
pass  through  it,  as  the  drfendants  then  well  knew]  \  and  the  defimd- 
ants  before  and  at  the  time  last  aforesaid  were  also  possessed  of 
certain  other  ironstone  mines  lying  and  being  in  the  same  vein  or  seam 
near  and  adjoining  to  the  said  last-mentioned  mine  of  the  plainti£b^ 
but  being  on  a  higher  level  than  the  said  last-mentioned  mine  of 
the  plaintiffs,  so  that  water  introduced  into  the  said  last-mentioned 
vein  or  seam  in  the  defendants'  said  last-mentioned  mines  would  ran 
down  from  the  same  and  pass  into  the  plaintifb'  said  last^mentioned 
mine  from  the  said  last-mentioned  mines  of  the  defendantSi  the  stratum 
or  floor  on  which  the  said  last- mentioned  vein,  seam,  and  mines  lay 
being  impervious  to  water,  and  by  means  thereof^  and  of  the  dip  or 
inclination  thereof,  preventing  such  water  from  escaping  deeper  into 
the  earth  or  otherwise  than  into  the  plaintiffs'  said  lastomentioned  mine, 
as  the  defendants  [also]  then  well  knew :  Yet  that  the  defendants,  in- 
tending to  escape  the  expense  of  themselves  raising  to  the  surface  of 
the  earth  the  water  next  thereinafter  mentionedi  and  to  throw  that 
expense  upon  the  plaintiffs,  by  means  of  certain  pumping-engines  and 
of  certain  cruts  or  openings  made  by  them  between  the  said  lasU 
mentioned  stratum  of  ironstone  and  divers  lower  strata  in  the  earth 
in  which  large  quantities  of  water  arose,  and  in  divers  whereof  the 
defendants  were  then  working  or  preparing  to  work  the  mines,  wrong- 
fully introduced  and  threw  into  their  said  mines,  in  this  count  first 
mentioned  great  quantities  of  water  arising  in  and  coming  from  the 
said  lower  strata,  and  such  water  ran  down  from  such  last-mentioned 
mines  of  the  defendants  to  the  boundary  of  the  plaintiffs'  [portion  of 
*8791  ^^^  ^^^  last-mentioned  stratum  of  ironstoneK5)  and  passed  *into 
^  and  through  the  same,  and  into  the  said  last-mentioned  mine 
of  the  plaintifGa, — by  means  whereof  the  plaintiffs  were  hindered  and 
prevented  from  working  their  said  last-mentioned  mine  so  conveni- 
ently and  profitably  as  they  otherwise  might  and  would  have  done^ 
and  were  put  to  great  expense  in  pumping  and  raising  the  said  water 
from  and  out  of  their  said  last-mentioned  mine  to  tl^  surface  of  the 
earth. 

Second  plea,  to  the  first  and  second  counts  respectively,  that 
tne  said  veins  or  seams  of  ironstone  in  those  eounta  respectively 
mentioned  were  not  respectively  strata  of  such  a  nature  as  to  allow 
water  to  percolate  and  pass  through  them  respectivelv,  nor  ooald 
water  introduced  into  the  said  veins  or  seams  respectively  in  the  de- 


COMMON  BENCH  REPORTS.    (15  J.  800TT.    N.  S.)        37» 

foDdants'  mines  in  those  coants  respectively  mentioned  ran  down  from 
the  same  and  pass  into  the  said  mines  of  the  plaintiffs  in  those  coants 
respectively  mentioned,  as  in  those  coants  respectively  alleged. 

Third  plea,  to  the  first  and  second  counts  respectively,  that  the  said 
cmts  or  openings  in  those  coants  respectively  mentioned  were  made 
by  them  as  in  those  coants  respectively  mentioned,  for  the  parpose 
of  reaching  th^  said  lower  strata  in  the  earth,  and  of  working,  getting, 
and  winning  the  mines  and  minerals  of  them  the  defendants  sitaate  in 
the  said  lower  strata  respectively,  and  not  for  any  other  parpose,  and 
were  so  made  by  them  according  to  the  asaal,  proper,  and  recognised 
manner  and  coarse  of  mining,  and  were  so  maae  with  all  due  care  in 
that  behalf;  that  the  said  great  quantities  of  water  in  those  coants 
respectively  alleged  to  have  been  introduced  and  thrown  by  the  de- 
fendants into  their  said  mines  in  those  coants  respectively  mentioned, 
by  means  of  the  said  cruts  or  openings  and  of  certain  pumping- 


ot  the  defendants  by  gravitation  and  by  the  action  of  other  natural 
forces  independently  and  irrespectively  of  any  pumping  or  drawing 
of  the  same  by  the  aefendants;  and  that  the  said  water  afterwards  ran 
and  passed  from  the  said  last-mentioned  mines  of  the  defendants  to 
and  into  the  said  mines  of  the  plainti£&  in  those  counts  respectively 
mentioned  under^ound,  by  natural  percolation  through  the  strata  of 
the  said  last-mentioned  mines  of  the  defendants  and  the  plaintififs  re- 
speotively,  and  not  otherwise. 

The  defendants  also  demurred  to  the  first  and  second  counts,  the 
groand  of  demurrer  alleged  being  'Hhat  those  counts  do  not  show  any 
wrongful  act  done  by  the  defendants,  or  any  invasion  by  them  of  any 
right  or  easement  to  which  the  plaintiflEs  are  entitled.*^    Joinder. 

The  third  count  of  the  declaration  stated,  that,  before  the  commit- 
ting by  the  defendants  of  the  grievances  thereinafter  mentioned,  the 
defendants  were  possessed  of  divers  mines  and  strata  of  ironstone 
lying  in  and  ander  certain  land,  which  strata  were  called  the  red 
shagg  ironstone  and  the  red  mine  ironstone,  and  also  of  divers  other 
mines  and  strata  of  minerals  lying  under  the  said  mines  and  strata  of 
ironstone  in  that  count  mentioned;  and  the  defendants,  for  the  pur- 
pose of  getting  rid  of  the  water  from  the  mines  and  strata  so  as  afore- 
said lying  anoer  the  said  ironstone,  made  certain  cruts  or  communica- 
tions betweea  the  said  lower  strata  and  the  said  strata  of  ironstone, 
and  thereby  and  by  means  of  pumping  and  otherwise  conducted, 
ndsed,  and  introduced  great  quantities  of  the  water  arising  in  the  said 
lower  strata  into  the  said  mines  and  strata  of  ironstone  of  which  the 
d^Midants  ^ere  possessed  as  in  that  count  before  mentioned,  r^Q^t 
and  condoeled  soon  water  to  certain  reservoirs  at  the  foot  of  a  ^ 
certain  pumping-pit  of  tixe  defendants,  from  and  out  of  which  the  de- 
fbndants  by  means  of  certain  engines  and  pumpa  raised  the  said  water 
^rongh  the  said  pumping-pit  to  the  surface  of  the  earth,  and  tbeie 
dbeharged  H.  ana  by  that  means  cheaply  and  conveniently  to  them- 
aolTes  canied  en  their  works  and  got  rid  of  the  water  from  the  said 
lower  strata :  tiiat  afterwards,  and  while  the  defendants  were  getting 
rid  of  tilie  said  water  fjN>m  the  said  lower  strata  by  the  means  and  sys* 


881  BAIRD  V.  WILLIAMSON.    M.  T.  1868, 

tern  aforesaid,  the  plaintiffs  were  possessed  of  parts  of  the  said  tvo 
strata  of  ironstone  adjoining  to  the  parts  thereof  so  possessed  by  tb^ 
(defendants  as  in  that  count  before  mentioned,  and,  being  so  possessed, 
worked  mines  therein  and  got  out  thereof  large  quantities  of  ironstone, 
and  thereby  left  large  unfilled  hollows  or  spaces  in  their  said  mines 
and  parts  of  the  said  strata  of  ironstone :  that  the*  said  strata  of  iron- 
stone were  of  such  a  nature  that  water  could  not  be  kept  from  passing 
from  one  excavated  part  thereof  to  any  other  bj  means  of  a  barrier, 
but  were  pervious  to  water,  which  would  and  did  readily  pass  through 
the  same,  as  the  defendants  at  and  before  the  time  in  that  count  afore- 
said well  knew :  that  the  inclination  of  the  said  strata  was  upwards 
from  the  plaintiffs'  to  the  defendants'  portion  thereof,  and  that  the 
strata  or  floors  on  which  the  said  veins  or  seams  of  ironstone  rested 
were  impervious  to  water,  so  that  water  introduced  into  the  defend- 
ants' portion  of  the  said  strata  of  ironstone  did  not  nor  would  sink 
into  the  earth,  but  descended  towards  the  defendants'  said  portion 
thereof,  and  when  the  pumps  of  the  defendants  at  their  said  pumping* 
pits  were  stopped,  such  water  would  rise  above  the  said  reservoirs  and 
*8821  ^°  ^^  defendants'  mines  against  the  boundary  of  the  *plaintil&' 
-'  said  portions  of  the  said  seams  of  ironstone,  and  would  escape 
through  the  same  into  the  plaintiffs'  said  mines,  and  fill  the  same  and 
the  said  hollows  and  spaces, — all  which  the  defendants  well  knew 
before  and  at  the  time  of  committing  the  said  grievances  in  that  count 
mentioned :  Yet  that  the  defendants,  intending  to  escape  the  expense 
of  themselves  raising  to  the  surface  of  the  earth  the  water  from  the 
aforesaid  lower  strata,  and  to  throw  that  expense  upon  the  plaintiff 
after  the  plaintiffs  had  begun  to  work  and  whilst  they  were  working 
their  said  mines  of  ironstone,  wrongfully  continued  to  introduce  in 
manner  aforesaid  the  water  from  the  said  lower  strata  into  their  said 
strata  of  ironstone,  and  wrongfully  discontinued  to  work  their  pumps 
at  the  said  pumping  pit  or  otherwise  to  raise  the  said  water'which 
they  so  continued  to  introduce  as  aforfesaid  to  the  surface  of  the  earth, 
and  allowed  the  same  to  rise  above  the  levels  of  the  said  reservoirs,  and 
above  the  levels  of  the  plaintiffs'  said  boundaries,  and  to  pass  into  the 
plaintiffs'  said  mines  and  the  hollows  and  spaces  aforesaid,  whereby 
the  same  were  filled  and  overflowed,  and  the  plaintiff  were  unable  to 
work  their  said  mines  so  conveniently  and  advantageously  as  they 
otherwise  might  and  would  have  done,  and  were  put  to  great  expense 
in  pumping  and  otherwise  getting  rid  of  the  said  water  from  their 
saia  mines. 

^  Fifth  plea,  to  the  third  county  that  the  said  oruta  and  commanica- 
tions  in  that  count  mentioned  were  made  by  the  defendants  for  the 
purpose  of  reaching  the  said  lower  strata,  and  of  working,  getting, 
and  winnine  the  mines  and  minerals  of  them  the  defendants,  situate 
in  the  said  Tower  strata,  and  not  for  any  other  purpose,  and  were  so 
made  by  them  according  to  the  usual,  proper,  and  recognised  manner 
And  course  of  mining,  and  were  so  made  with  all  due  care  in  that 
*8831  ^^^^^^ '  *^^^  ^^^  ^^^  ^^^  great  quantities  of  water  in  thi^ 
-•  count  alleged  to  have  been  conducted,  raised,  and  intrcduc^ 
into  the  said  mines  and  strata  of  the  defendants  as  therein  mentioned, 
and  to  have  been  conducted  to  the  said  reservoirs  by  means  of  the 
said  cruts  or  communications,  and  of  pumping  and  otherwise,  were 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S )        388 

certain  quantities  of  water  whicli  ran,  flowed,  and  passed  by,  through, 
and  along  the  said  cruts  or  communications  from  the  said  lower  strata 
respectively  to  and  into  the  said  other  mines  and  strata  of  the  de- 
fendants in  that  count  mentioned,  by  gravitation  and  other  natural 
forces  independently  and  irrespectively  of  any  pumping  or  drawing 
of  the  same  by  the  defendants. 

The  defendants  also  demurred  to  the  third  count,  the  ground  of 
demurrer  alleged  being  the  same  as  that  alleged  for  demurrer  to  the 
first  and  second  counts.    Joinder. 

The  plaintiffs  demurred  to  the  second  plea  on  the  ground  that,  * 
"even  if  there  was  no  barrier  at  all  left  by  the  plaintiffs,  the  defend- 
ants cannot  justify  the  introduction  of  foreign  water  into  the  mines." 
Joinder. 

The  plaintiffs  also  demurred  to  the  third  and  fifth  pleas,  the  ground 
alleged  being,  '*  that,  although  the  mode  adopted  be  a  proper  and  re- 
cognised mode  of  mining,  it  will  not  justifv  the  introduction  of  foreign 
water  into  a  vein  of  mineral,  when  it  damages  an  adjoining  mine 
belonging  to  another  owner  in  the  same  vein."    Joinder. 

The  plaintiffs  also  new-assigned  that  they  sued  not  only  for  the 
grievances  in  the  third  and  fifth  pleas  admitted,  but  also  for  similar 
grievances  in  respect  of  water  which  ran,  flowed,  and  passed  by, 
through,  and  along  the  said  cruts  or  openings  from  the  said  lower 
strata  respectively  to  and  into  the  said  other  mines  of  the  defendants 
by  means  of  pumping  and  drawing  the  same  by  the  defendants. 

♦The  defendants  pleaded  to  the  new-assignment, — first,  not  r^ooA 
guilty, — secondly,  that  the  said  cruts  or  openings  in  the  new-  ^ 
assignment  mentioned  were  made  by  them  for  the  purpose  of  reaching 
the  several  lower  strata  in  the  earth  in  the  several  counts  of  the  decla- 
ration mentioned,  and  of  working,  getting,  and  winning  the  mines  and 
minerals  of  them  the  defendants  situate  in  the  said  lower  strata  respect- 
ively, and  not  for  any  other  purpose,  and  were  so  made  by  them  ac- 
cording to  the  usual,  proper,  and  recognised  manner  and  course  of 
mining;  that,  after  the  same  had  been  so  made,  the  defendants  were 
engaged  in  working,  getting,  and  winning  certain  parts  of  the  said 
mines  and  minerals  of  them  the  defendants  situate  m  the  said  lower 
strata,  and  were  so  working,  getting,  and  winning  the  same  according 
to  the  usual,  proper,  and  recognised  manner  and  course  of  mining;  that, 
in  the  course  and  for  the  purpose  of  such  last-mentioned  working, 
getting,  and  winning,  it  became  and  was  necessary  for  the  defendants 
to  pump  and  drain  away  the  water  in  the  said  new-assignment  men- 
tioned from  the  said  last-mentioned  parts  of  the  said  mines  and  mine- 
rals, and  the  defendants  did  accordingly  pump  and  drain  away  the 
said  water ;  that,  by  reason  of  such  pumping  and  draining,  the  said 
water  ran,  flowed,  and  passed  by,  through,  and  along  the  said  cruts 
and  openings  into  certain  other  parts  of  the  mines  of  the  defendants, 
that  is  to  say,  the  several  upper  strata  in  the  declaration  mentioned ; 
and  that  the  ^aid  water  afterwards  ran  and  passed  from  the  said  last- 
mentioned  mines  of  the  defendants  to  and  into  the  mines  of  the  plain- 
tifiEs  underground  by  natural  percolation  through  the  strata  of  the  said 
last-mentioned  mines  of  the  defendants  and  of  the  plaintiff  respectively, 
and  not  otherwise, — which  were  the  grievances  above  newly -assigned* 


n 


384  BAIBD  v.  WILLIAMSON.    M.  T.  1863. 

^651  ^^  plaintifi  demarred  to  the  second  plea  to  the  ^new-assign- 
^  J  raent,  the  ground  of  demurrer  alleged  being,  •'  that,  although 
it  be  a  usual,  proper,  or  recognised  mode  of  mining,  it  will  not  in  lav 
justify  pumping  foreign  water  into  a  vein  of  mineral,  when  it  dam- 
ages an  adjoining  mine  belonging  to  another  owner  in  the  same  vein.^' 
Joinder. 

John  Gray,  Q.  C,  for  the  plaintiflf8.(a) — Neither  of  the  pleas  ia 
question  affords  any  answer  to  the  plaintiffs'  complaint  The  defend- 
ants clearly  had  no  right  by  making  cruts  to  alter  the  natural  flow 
of  the  water  from  their  mine,  and  cause  it  to  flow  into  the  plaintifi' 
mine :  still  less  had  they  a  right  to  do  so  by  raising  the  water  bj 
artiflciid  means  from  the  lower  to  the  upper  part  of  their  mine,  and 
thereby  increase  the  natural  flow  into  the  mines  of  the  plaintifis.  Tbe 
general  expressions  thrown  out  by  the  Court  in  Smith  v.  Kenrick,  7 
U.  B.  615  (E.  C.  L.  R.  vol.  62),  do  not  affect  this  case:  nor  do  the 
cases  of  Acton  v,  Blundell,  12  M.  &  W.  324,  or  Chasemore  t;.  Bich- 
♦8861  ^^^'  ^  Hurlst.  &  N.  168,  7  House  of  *Lords  Cases  849,  apply. 
^  The  Lord  Chancellor,  in  the  last-mentioned  case,  puts  it  very 
much  as  Tindal,  C.  J.,  did  in  giving  the  judgment  of  the  Exchequer 
Chamber  in  Acton  v.  Blundell,  where  it  was  held  that  the  owner  of 
land  through  which  water  flows  in  a  subterraneous  course  has  no 
right  or  interest  in  it  which  will  enable  him  to  maintain  an  action 
against  a  landowner,  who,  in  carrying  on  mining  operations  on  bia 
own  land  in  the  usual  manner,  drains  away  the  water  from  the  land 
of  the  first-mentioned  owner,  and  lays  his  well  dry.  **  We  think/' 
said  the  Chief  Justice,  "  the  present  case  is  not  to  be  governed  by  the 
law  which  applies  to  rivers  and  flowing  streams,  but  that  it  rather 
falls  within  that  principle  which  gives  to  the  owner  of  the  soil  all  that 
lies  beneath  his  sur&ce ;  that  the  land  immediately  below  is  his  pro- 
perty, whether  it  is  solid  rock,  or  porous  ground,  or  venous  earth,  or 
part  soil  part  water;  that  the  person  who  owns  the  surface  may  dig 
therein,  and  apply  all  that  is  there  found  to  his  own  purposes  at  his 
free  will  and  pleasure ;  and  that,  if  in  the  exercise  of  such  right,  he 
intercepts  or  arains  off  the  water  collected  from  underground  springs 
in  his  neighbour's  well,  this  inconvenience  to  his  neighbour  falls 
within  the  description  of  damnum  absque  injurifi,  which  cannot  be- 
come the  ground  of  an  action."  It  is  no  answer  to  the  plaintiSs' 
complaint  for  the  de£mdants  to  say  that  what  they  have  done  was 
done  in  the  usual  and  ordinary  course  of  good  mining. 

H,  James  (with  whom  was  Horace  Lloyd)^  contii.(&) — ^The  pleas 

(a)  The  peints  nmrktd  for  wgamMit  on  tho  port  of  Um  pUiBtifli  ww  m  foUowi  >- 
"  1.  The  first  end  seoood  ooontf  eoeh  ihows  o  come  of  octlon,  bj  ihowiiig  thet  the  deftintMli 
iatrodoeed  into  the  refaif  water  not  natarallj  arising  in  the  Toini^  hat  coming  lh»ia  otkac 
Bonroef,  knowing  thai  raoh  water  wonld  find  its  way  into  the  plaintiffs*  minee: 

<«a.  That  the  nanner  In  wUoh  tho  water  flade  He  w«jp  into  liw  pkliitias*  aiaee  Is  inwtsrisl^ 
whether  hy  pereolation  throvgh  a  harrier  or  from  the  aheenoe  of  ai^  hHrriei^  if  the  watsr  be 
Ihreiga  water  not  natnial^j  arising  or  flndlii^  ita  w«j  into  the  vata^and  theiafiise  the  ssssad 
pleaiihad: 

«8L  That  thotUfd  and  Mtt  ploM  and  the  eeeoad plea  to  the aeir-anigaaMHt  aiehiiM 

the  groaad  tet>  aHh««h  th»  aoAs  adafted  hj  the  detedanta  he  a  pwpsr  and  lesniiiwi 

mode  of  BiiaiBg,it  will  ant  jae tl«r  the  latradaetiea  at  liraaiga  waUr  UHe  a  eafai  of  aiMrit 

whers  it  damages  an  a4ioiniBg  mine  heloaging  U  another  owner  ia  thaiaaU  eela  of  miasmL* 

(ft)  The  points  marked  for  argnment  on  tte  part  ofthe  defendants  were  as  foUows:— 

"  L  That  the  flrs^  seooad,  aad  third  eoaaU  of  the  dedaratioa  are  respeearoly  bod  ia  lak. 


COMMON  BENCH  REPORTS.    (15  J.  SCOTT.    N.  S.)        386 

allege  that  the  defendants  have  *done  no  more  than  work  their  r^oo^ 
mine  according  to  the  usual  and  approved  course  of  mining  in  '• 
the  district.  They  had  an  undoubted  right  to  get  all  the  ironstone 
from  their  mine,  regardless  of  the  natural  consequences  which  might 
result  from  their  so  doing.  That  is  the  effect  of  the  judgment  of  this 
court  in  Smith  v.  Kenrick  and  of  the  Exchequer  Chamber  in  Acton 
V.  Blundell.  The  only  obligation  which  the  law  imposes  upon  the 
defendants,  is,  that,  in  working  their  mines,  they  shall  not  be  guilty 
of  negligence,  or  wilfully  damage  *the  plaintiffs!  mine.  [Erle,  r^ong 
C.  J. — The  defendants  in  working  their  mine  had  no  right  to  ^ 
interfere  with  the  natural  flow  of  the  water.  If  by  gravitation  it  will 
go  away,  so  be  it:  but  they  must  not  direct  it.]  The  cruts  were  not 
made  for  the  purpose  of  conducting  the  water  in  a  given  course,  but  for 
the  purpose  of  getting  the  ore  in  the  most  convenient  manner.  Smith 
V.  Kenrick  distinctly  lays  it  down  that  the  rights  and  duties  of